Alghamdi, Khalid Ahmad (2015) Evolving standards of information disclosure: Reform of Saudi Arabian medical law in the light of the developments of English law. PhD thesis. https://theses.gla.ac.uk/7926/ Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten: Theses https://theses.gla.ac.uk/ [email protected]
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Alghamdi, Khalid Ahmad (2015) Evolving standards of information disclosure: Reform of Saudi Arabian medical law in the light of the developments of English law. PhD thesis.
https://theses.gla.ac.uk/7926/
Copyright and moral rights for this work are retained by the author
A copy can be downloaded for personal non-commercial research or study, without prior permission or charge
This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author
The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author
When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given
Reform of Saudi Arabian medical law in the light of the developments of English law.
Khalid Ahmad Alghamdi
LLM in Law, Medicine and Healthcare (the University of Liverpool, the UK). LLB (King Abdulaziz University, Saudi Arabia).
Submitted in fulfilment of the requirements for the Degree
of Doctor of Philosophy
School of Law
College of Social Sciences
University of Glasgow
September 2015
i
Abstract The major concern of this thesis is about the current professional standard of care under
Saudi Arabian medical law, regarding doctors’ duty to disclose information and risks to
competent adult patients about a proposed medical treatment. Additionally, the thesis has
highlighted other legal deficiencies that occur as a result of applying the professional
standard in Saudi Arabia and considered how reforms can be introduced, based on English
law experience in a way that is in harmony with Islamic Sharia.
The thesis has undertaken a novel approach by critically studying and comparing the current
practice in Saudi Arabian medical law to the comparative English law approach. The reason
for this is to provide a comprehensive legal literature review based on the extremely well-
developed English law experiences in the same matters.
Realising the significance of the principle of the respect for autonomy, the thesis has placed
a noticeable emphasis on this principle by arguing that considering and respecting autonomy
would lead the law to protect the patient’s autonomy and self-determination in a medical
context. The thesis has argued that both Western and Islamic Sharia medical ethics have
considered the notion of the respect for patients’ autonomy, but that consideration has been
approached differently, as the thesis has shown.
Further, the thesis has critically discussed how the English law standard of care has been
developed in the last three decades, in order to move from the professional standard of care
to a new standard that protects patients’ autonomy and self-determination. These
developments and years of experience have provided sufficient arguments and supports for
the thesis’s motion to recommend and suggest that Saudi Arabian medical law departs from
the professional standard and adopts the prudent patient standard to protect patients’
autonomy in compliance with Islamic Sharia.
In addition to proposing a legal formula for the prudent patient standard that can be adopted
by Saudi Arabian medical law, this thesis has also proposed other formulas as solutions for
other legal deficiencies, based on English law experience and in accordance with Islamic
Sharia.
ii
Table of Contents Abstract..............................................................................................................................................i
Table of cases.................................................................................................................................vi
Table of statutes.............................................................................................................................x
1. An overview.............................................................................................................................9
2. The research method and the use of Islamic Sharia, Saudi Arabian legislation and Arabic language sources...........................................................................................................15
3. The thesis structure.............................................................................................................17
Chapter one: The principle of respect for autonomy and trust: a Western view..............23
2. The principle of respect for autonomy.................................................................................24
2.1. A general overview of autonomy....................................................................................25
2.2. Consequentialism/utilitarianism versus deontology...................................................27
2.3. The value of autonomy....................................................................................................30
2.4. The limitation of autonomy and the principle of harm..............................................32
2.5. The notion of beneficence and the respect for autonomy in Western medical ethics...........................................................................................................................................34
2.1. An overview of Islamic Sharia.........................................................................................81
2.2. The two primary sources of Islamic Sharia...................................................................82
2.3. Islamic schools of thought...............................................................................................86
2.4. The Sunni secondary sources..........................................................................................88
2.5. The Sunni supplementary sources..................................................................................91
3. The relationship between Islamic Sharia and the Saudi Arabian’s legal system...........93
3.1. A historical background....................................................................................................93
3.2. Legislative bodies and procedures in Saudi Arabia.....................................................94
4. Islamic Sharia on medical ethics............................................................................................99
4.1. The foundation of Islamic Sharia medical ethics.........................................................99
4.2. The relationship between Islamic religion, ethic and law......................................101
4.3. The role of the SCHS......................................................................................................104
5. The principle of respect for autonomy based on Islamic Sharia its use in Saudi Arabian medical ethics.............................................................................................................................105
5.1. Patient consent and respect for autonomy...............................................................111
1) Respect for a patient’s autonomy is limited.............................................................113
2) A complete respect for patient autonomy................................................................119
5.2. The importance of information disclosure and respect for autonomy..................122
5.2.1. Doctors’ duty to disclose information.................................................................123
5.2.2. What should be disclosed......................................................................................124
5.2.3. Doctors’ duty to ensure the patient can understand the information..........126
5.2.4. The use of the notion of therapeutic privilege.................................................127
5.2.5. Patients’ duty to seek information......................................................................130
3.2.2.1. Information disclosure and negligence............................................................146
A. The Duty of Care............................................................................................................146
B. Breach of the duty of care..........................................................................................148
The subjective (patient) standard...................................................................................150
The Doctor-centred stage (the professional standard)....................................................153
The professional standard based on Sidaway................................................................156
A decidedly conservative approach to the law (Unmodified Bolam).........................156
Middle way (Modified Bolam)...........................................................................................158
The patient-centred stage (the prudent patient standard)............................................165
Lord Scarman in Sidaway (a radical shift)......................................................................165
4. The development of English law on information disclosure since Sidaway.................171
4.1. After Sidaway a gradual change..................................................................................172
4.2. Chester and beyond.......................................................................................................182
4.3. Montgomery, a new dawn?...........................................................................................187
4.3.1. The case facts and legal background..................................................................187
4.3.2. Sidaway set aside...................................................................................................189
4.3.3. The prudent patient standard of care as the current approach to information disclosure in England.........................................................................................................190
C. Causation........................................................................................................................200
Chapter four: Islamic Sharia and Saudi Arabian law on consent and information disclosure.....................................................................................................................................210
C. Adequate information disclosure (AlTabsser)..........................................................232
C.1. Information disclosure and the current practice under Saudi Arabian medical law........................................................................................................................................232
C.2. An overview................................................................................................................234
C.3. Information disclosure in current Saudi Arabian medical law............................235
C.3.1. The doctor’s duty to inform.................................................................................237
C.3.1.1. The amount of information that doctors should disclose............................239
C.3.1.2. Doctors’ duty to ensure that the patient can understand the information...............................................................................................................................................241
C.3.1.4. Doctors’ duty to inform the patient about available alternative treatments...............................................................................................................................................242
C.3.1.5. Doctors’ duty to answer patients’ questions.................................................242
C.3.3. Where the patient refuses information..............................................................244
3.2.4. Consequences of failing to meet the standard of information disclosure and negligence............................................................................................................................245
3.2.4.1. The duty of care..................................................................................................245
3.2.4.2. Breach of the duty of care (AlTaadi)...............................................................246
which further reflects on the relative dearth of Saudi law in this area. During the 30 years
(since Sidaway11 was decided) there have been significant English law cases and academic
debates, discussions, analysing and criticising of the professional standard of care.12 Such
robust literature is the result of principled consideration of what patients (wherever they may
be) what patients want and need, and of an increasing emphasis on protecting their rights and
respecting their autonomy.13
That can be clearly understood from the decision in Montgomery v Lanarkshire Health
Board.14 In this important case, the Supreme Court reinforced the importance of respect for
patients’ rights and autonomy, saying:
‘The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.’15
While it is accepted that there may be problems associated with implementation of the
changes proposed in this theses, based on the developments in English law, it is important to
bear in mind that – with limited exceptions, such as in the case of refusal of life sustaining
treatment – it is increasingly the case that the need to respect rights and autonomy in
healthcare (along the lines of the recent English case law) is taking on increased significance
in debates in Saudi Arabia.
Fourth, English law has a long history of dealing with the issue of recognising – in theory at
least – the value of patient autonomy. The historical reluctance to focus on patients’ rights
rather than doctors’ duties has contemporary relevance in Saudi Arabian medical law,
providing a rich source of information and guidance on how laws can develop, based on
principles which (as will be argued) are broadly similar between the jurisdictions (albeit with
2. The research method and the use of Islamic Sharia, Saudi Arabian legislation and Arabic language sources The study will use a comparative, critical and analysis-based method of research using legal
authorities, resources and commentaries relevant to the two jurisdictions. This thesis is
concerned with the Sunni Islamic schools of thought on Sharia law. This should not be
considered as showing disrespect towards other Islamic schools of thought but is due to the
focus of this thesis being on Saudi Arabia, where the Sunni school predominates, as will be
discussed in Chapter two.
Nevertheless, while there is a rich tradition of Islamic scholarship on Sharia law, compared
with the array of materials available on the English legal position on medical treatment and
information disclosure, there is a comparative shortage of Arabic language sources and
materials, and even less those relating specifically to Saudi Arabia. The available materials
in Sharia law that have a bearing on medical law are often not directly related to the topic
of consent to medical treatment, and as noted, some were written a very long time ago, which
leads to the observation that this is an area which is presently underdeveloped. It also lends
itself to the need for Sharia law to be interpreted in a contemporary medical treatment
context.
A matter to be explained is that there will be, in some places in this thesis, multiple uses of
the same Sharia materials to illustrate different points. This is because the nature of the use
and interpretation of Islamic Sharia requires such an approach. For example, the Messenger
PBUH said: ‘[a]ny physician who practises medicine when he was not known as a
practitioner before that and he harms (the patients) he will be held responsible.’50 This
prophetic statement can be cited to illustrate different points. Firstly, it can be used by
scholars or lawyers to argue that, as the statement just included the liability of unqualified
doctors, so those who are qualified should not be held liable if they make a medical error,
because they are out of the statement’s ambit.51 Secondly, it can be used to argue that a doctor
may incur civil or criminal liability if either s/he is an ignorant in the way s/he conducts
his/her practice or if s/he acts outside his/her own speciality, such as a family doctor who
Chapter one: The principle of respect for autonomy and trust: a Western view
26
it can be said that autonomy allows a person to base his/her actions and decisions on his/her
wishes on how to live his/her life.19 Accordingly, it has been said that ‘to respect autonomy
is to accept a person who has a right to hold views, make choices and take action based on
personal values and beliefs’.20 This makes us distinctive human beings, in charge of our
personal affairs.21
It may be suggested that the concept of autonomy in Western ethics has been substantially
developed based on the philosophical thoughts of two philosophers in particular: Immanuel
Kant and John Stuart Mill.22 Their approaches to the concept of autonomy have been
described as being a rational view (Kant) and a classic liberal view (Mill).23 Kant wrote
extensively on autonomy and in particular on the idea of ‘autonomy of will’.24 He considered
autonomy as ‘meaning the self-ruling of practical rationality’,25 saying that ‘deliberated self-
rule is a special attribute of all moral agents’.26 Kant’s view is commonly used in discussions
about the principle of respect for autonomy in ethical fields.27 According to Kant’s theory of
autonomy, in order to respect individuals’ right to self-determination everyone is required to
‘act so that you treat humanity whether in your own person or in that of another, always as
an end and never as a means only’.28 To this extent, then, autonomy is not about total
individual freedom of choice and action: there are limitations on it, imposed by duties to
respect others’ rights, including their right to autonomy. Accordingly, O’Neill understands
Kant’s view on autonomy as follows:
‘Kantian autonomy is manifested in a life in which duties are met, in which there is respect for others and their rights, rather than in a life liberated from all bonds. For Kant autonomy is not relational, not graduated, not a form of self-expression; it is a matter of acting on certain sorts of principles, and specifically on principles of obligation.’29 (Her emphasis).
Chapter one: The principle of respect for autonomy and trust: a Western view
30
consider the value of autonomy based on both the Kantian and Millian traditions to show
their significance in terms of the development of the notion of respect for autonomy as an
ethical principle, and consider this specifically in the context of medical ethics. Despite the
lack of consensus on which approach, if either, is correct, both these approaches may be seen
to remain influential in medical ethics and also in informing the legal approach to
information disclosure and consent to treatment.
2.3. The value of autonomy In considering the value of autonomy, it has been suggested that it has both intrinsic and
instrumental value.60 Kant’s and Mill’s theories on autonomy (or liberty) can both be
considered as relevant to these concepts. First, the intrinsic value of autonomy can be
described as ‘the value that autonomy has in itself or for its own sake, as opposed to it being
valuable for the sake of something else’.61 Based on autonomy’s intrinsic value, it can be
argued that respect for autonomy is ‘…essential for the good life, rather than being valuable
only insofar as it helps secure other valuable things’.62 The intrinsic value of autonomy can
thus be understood as following from Kant’s view as it has been stated that ‘Kant claims that
autonomy has such value that we should act in such a way so as to treat ourselves and others
as an end, and never simply as a means to an end…’.63
However, Young, for example, has argued that Mill’s view can also be the basis for
autonomy’s intrinsic value.64 As Darwall observed, ‘…a utilitarian can take the position that
Mill seems to take, that personal autonomy is intrinsically beneficial to a person, that it is a
constituent part of her well-being or happiness’.65 Then Darwall went on to explain:
‘This makes autonomy intrinsic to that which is intrinsically morally desirable, happiness or welfare, but not yet intrinsically morally worth promoting in itself. What makes an outcome intrinsically worth promoting from the moral point of view is still happiness or well-being; it is just that Mill believes that autonomy is an intrinsic part of that.’66
It has also been argued that ‘autonomy’s value derives from its place within the matrix of
our conception of what it is to be an interacting, responsible, principled, responsive human
Chapter one: The principle of respect for autonomy and trust: a Western view
32
2.4. The limitation of autonomy and the principle of harm Maclean has stated that: ‘If autonomy were to be seen as an absolute right to decide for
oneself the consequence would be the risk of chaos with the vulnerable left to the mercy of
the strong. In fact, if conceived as a right then it is logically impossible for it to be absolute.’74
I would agree with this conclusion, since if there were to be an absolute right that each
individual’s autonomy was respected and the wishes of individuals conflicted then, without
reference to other principles, this right could not resolve disputes and they would likely be
settled in accordance with power imbalances between the individuals. As we live in a non-
isolated world and we interact and communicate with others, a claim that a person can enjoy
an absolute right to autonomy is not defensible, because the person cannot do whatever
he/she wants irrespective of others whose right to autonomy may be affected by his/her
action. Therefore, autonomy has great value, but it must be subject to limitations. A key
concept that has been used to place limitations on the extent of respect for an individual’s
autonomy is therefore that of harm.
It has been argued that: ‘The requirement to respect autonomy ends where harm to others
begins: we are not obliged to enable some to act in ways which compromise the interests of
others.’75 This argument for limiting respect for autonomy was encapsulated in Mill’s
understanding of the harm principle, explained in his book On Liberty.76 According to Mill’s
understanding of individual liberty, noted earlier, a person can enjoy the right to act or make
a decision regardless of whether others consider that choice to be ‘rational’ in the sense that
Kant suggests. Instead, he provided justification for why self-harming or irrational decisions
should nonetheless be respected, while at the same time restricting autonomy where it would
result in harm to other people.
‘The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.’77
Hence, an autonomous decision that can be respected based on Mill’s approach is that which
a competent person makes for him/herself, so long as it does not cause harm to others. Mill
observed that: ‘The principle [of autonomy] requires liberty of taste and pursuits, of forming
Chapter one: The principle of respect for autonomy and trust: a Western view
33
the plan of our life to suit our own character; of doing as we like, subject to such
consequences as may follow: without impediment from our fellow creatures, so long as what
we do does no harm to them.’78 This approach can be illustrated in Gorovitz’s observation:
‘No person is to be merely the instrument of another person’s plans; no person is to be treated in a manner that is blind to the plans, desires and values that are the fabric of his or her life and identity. Roughly speaking, we believe that it is obligatory to leave people alone, unless we have powerful reasons for not doing so’.79
However, to apply the harm principle is not straightforward; for example it may not be easy
to distinguish, even after a decision to take action has been made, whether harm has occurred
or if that action is what has made the person’s situation case worse than it would have been.80
It may be even more difficult to establish in advance what the outcome of a particular action
will be. Further difficulties may arise in that in some cases a person’s action may seem likely
to produce a harmful outcome without it being clear whether that outcome is a sufficient
justification for intervention, because there will disagreement about whether the degree of
harm anticipated is sufficient to warrant intervention to prevent it.81
Harm may be considered in terms of harms to other specific individuals or to the community.
Feinberg, for example, has written extensively on the issue of whether and in what
circumstances restricting the behaviour of individuals may be justified for the protection of
society.82 This idea of protecting the community by limiting the principle of respect for
autonomy might be applicable in term of public medical threats, for example to control the
risk of spreading infectious disease. In such situations, an action of coercion or force might
be justifiable to detain the infected person or treat him/her to prevent the spread of disease
to others.83 Hence, where the exercise of individual autonomy would cost the community
too high, respect for autonomy may be overridden in consequence of the application of the
harm principle.84
Nonetheless, despite Mill’s justification for allowing self-harm in the exercise of personal
autonomy,85 an absolute acknowledgment of the right to autonomy might also be
Chapter one: The principle of respect for autonomy and trust: a Western view
34
controversial in relation to decisions concerning the person him/herself.86 O’Neill for
example has argued that some individual’s action might be ‘impulsive’ or ‘out of control’,87
thus a person may sometimes take a regrettable or reckless decision. Therefore, it has been
contended that an individual’s autonomy can be limited to prevent the person him/herself
from self-harming behaviour.88 Therefore, when there is an anticipated ‘self-inflicted harm’,
violating respect for autonomy by taking a paternalistic approach to prevent that harm may
be justified.89 If a person does not meet the grounds for autonomous decision making, which
will be considered briefly later, there may be greater justification for intervening to protect
him/her from him/herself. However, this thesis is concerned with competent adults so the
presumption will be in discussion that the person is capable of exercising autonomy. The
extent to which paternalistic actions to protect a competent person from taking or making
decisions that may be harmful to them will also be considered further later.
For the moment, however, it can be concluded that while autonomy has an obviously very
significant value it is not absolutely protected, as the principle of harm may allow
interference with a person’s autonomy by limiting it, at least on the ground of preventing
harm to others. Having outlined the principle of respect for autonomy and limitations on it
in a broader philosophical context, it is now important to consider how the principle of
respect for autonomy has been considered more specifically in the context of medical ethics
and focusing on information disclosure and consent.
2.5. The notion of beneficence and the respect for autonomy in Western medical ethics The principle of beneficence ‘refers to a statement of moral obligation to act for the benefit
of others.’90 It has been observed that the principle of beneficence includes the following
general rules: ‘1. Protect and defend the rights of others. 2. Prevent harm from occurring to
others. 3. Remove conditions that will cause harm to others. 4. Help persons with disabilities.
5. Rescue persons in danger.’91 It may be justified from both a Kantian and a Millian
perspective: as a rule that one should act to benefit others, and as an approach that seeks to
provide the best outcome for the greatest number of people by acting to benefit others.
Chapter one: The principle of respect for autonomy and trust: a Western view
37
doctors to enter into discussion with the patient to obtain a consent to treatment.109 As White
and Seery have stated, ‘proponents of patient autonomy – and indeed society as a whole –
stress the prime importance of letting the autonomous patient decide, by asserting that only
patients can really decide what is in their best interests overall, as opposed to merely being
in their medical best interests’.110 In other words, a doctor’s duty to promote the welfare of
the patient not only consists of the duty to restore health but also to respect them as
individuals capable of deciding what is best for them.
This approach would require that more respect should be paid to patients’ views and to
facilitate their involvement in the medical decision. A paternalistic approach has been
increasingly rejected, primarily because paternalism is seen as breaching patients’ personal
rights most notably to respect for autonomy.111 People may be believed to increasingly want
the freedom to act, make free choices, and be independent. In our current climate, it seems
to be accepted that the notion of freedom of choice and respect for patients’ autonomy should
be supported.112 Approaches that ignore the role of the individual in deciding whether to
undertake proposed medical treatment based on what others consider would be for their
benefit are treated with suspicion.113 Callahan has stated that:
‘In the context of medicine, it [autonomy] is a value that has served to establish the rights of patients over physicians, and the right to be spared the paternalistic interventions of those who think they understand my welfare better than I do. The purpose of autonomy is to make me my own moral master.’114
Arneson has observed that: ‘The consequences of coming to rely on the dispensation of
paternalistic aid are mischievous, as are the consequences of dispensing paternalistic aid and
the consequences of observing paternalistic aid dispensed to others.’115 In fact, Gillon has
argued that respect for autonomy should be regarded as an essential principle in the field of
medical ethics.116 Gillon justified this by suggesting that it has support from widely differing
social or political positions; ‘autonomy is, then, de facto given a place of honour because the
thrust of individualism, whether from the egalitarian left or the market oriented right, is to
Chapter one: The principle of respect for autonomy and trust: a Western view
47
duty, so a failure to do so with intention or not would lead to ‘a false reliance that undermines
the individual’s autonomy’.187
Hence, information is essential to patients’ decisions, but the question here is what kind of
information should be provided to them? There is a continuing debate over the amount and
type of information that should be given to patients and there is no clear answer, as it would
not be easy to satisfy everyone about what should be disclosed. McLean, for example, has
proposed that:
‘While it could be argued that only full and complete disclosure would allow for an autonomous decision to be made, in practice this would likely prove impossible and, some would argue, may even be counter-productive. It is increasingly recognised that demanding full disclosure of every piece of information within the healthcare professional’s knowledge would be unreasonable and even potentially unhelpful’.188
Waller also shares this concern, with which I agree, that to give an enormous amount of
information to the patient which he cannot understand and absorb would not empower the
patient to be in charge of his decision.189
Although information is fundamental to the patient’s autonomous decision there may be
information that is not helpful or necessary for the patient to know, such as all the details of
a medical procedure.190 This is because knowing the exact details of how a procedure will
be performed is important for the person who will conduct it, but it is not necessarily needed
for the person to whom it will be applied in order to agree to it.191 MacLean has given the
following example to stress the point ‘it is completely unnecessary for patients to know that
a purse-string suture is employed to close the defect left when an appendix is excised.’192
Indeed, such information may tend to confuse or mislead the patient and might negatively
affect the patient’s decision, because the patient may pay more attention to the details of the
procedure and less attention to the information that he really should consider in making his
decision. Another type of information which may not be helpful to disclose to the patient ‘is
details of the scientific evidence in support of the procedure.’193 The patient might need to
know that there is research that has indicated that procedure A is better and more effective
Chapter one: The principle of respect for autonomy and trust: a Western view
48
than procedure B; on the other hand, the patient does not necessarily need to know or
understand how the research demonstrated that.194
Another argument suggests that there would be difficulty if ‘full knowledge’195 was a
prerequisite for considering the decision as autonomous, as it has been said that requiring
full knowledge before a person could be deemed to be making an autonomous decision is
‘just a means of limiting action: sometimes an underhand means. No one has perfect
knowledge, and a demand for it permits those with power to close in when a person is trying
to make an unusual decision.’196
Hence, it seems that from an ethical point of view a standard of full disclosure of information
concerning proposed options for the care of a patient might at first sight be an ideal position,
since it would ensure that all information available was given to the patient. However, it
seems to not be an achievable or even necessarily a desirable standard for the reasons given.
So, the question is; is there an approach under which it is easier to satisfy an individual
patient’s relevant information needs than to require complete and full disclosure of all
available information?
There have been different suggestions to find an alternative ethical standard for disclosing
information, which may better satisfy the patient’s need for information, and in the following
I will consider some standards that have been proposed.
O’Neill has agreed that full information disclosure is a problematic matter, and has asserted
that this is not defendable or achievable.197 She has suggested that:
‘At best we may hope that consent given by patients in the maturity of their faculties, although not based on full information, will be based on reasonably honest and not radically or materially incomplete accounts of intended treatment, and that patients understand these accounts and their more central implications and consequences to a reasonable degree.’198
O’Neill then associated her suggestion of information disclosure to the idea of a patient-
doctor participation and trust relationship as forming the basis for providing information.199
However, I would suggest this has difficulties, as it may be seen as implementing and
Chapter one: The principle of respect for autonomy and trust: a Western view
49
supporting the paternalistic doctor relationship, which, as I argued above, would undermine
respect for patient autonomy. This option, to rely on the notion of trust is a difficult standard
to be adopted by law also since would also raise practical difficulties as to how the law could
enforce it. I will revisit O’Neill’s argument and consider it further later in this Chapter when
examining the concept of trust in more detail.
Another alternative to full disclosure has been suggested that, rather than setting out
particular rules about disclosing certain amounts or types of information, proposes that the
emphasis should be on what would help the individual patient make a sufficiently informed,
and hence autonomous, decision:
‘...meeting a person’s individual needs for information and choice based on a deeper understanding of their autonomy means that rules and procedures of communication become less important than adoption of attitudes of respect, curiosity and concern to find out about the patient’s needs, capacities and preferences.’200
Therefore, the disclosure of information required is the information and knowledge that is
likely to be relevant to a particular patient’s conditions and in relation to their own choices
and decisions.201 This would involve a more active role for doctors in determining the
information needs of patients rather than viewing themselves merely as passive providers of
medical knowledge. Patients must be given relevant information about their health
conditions and be actively encouraged to seek information, accepting the responsibility to
‘participate in the informed consent process’202 by conversing with the physicians, sharing
information and asking questions in order to comprehend any unclear information.
What this approach also suggests is that to just provide patients with information with no
understanding by them would arguably make their decision not a sufficiently autonomous
one, as McLean has described such a decision as ‘impaired’.203 Waller has also argued that
‘[i]nformation is an important element of autonomous control; but unless the patient has
confidence and competence to understand, it provokes stress rather than providing
comfort.’204 Therefore, for a decision to be regarded as an autonomous, it should be grounded
on understandable and clear information.205 For patients to be said to have understood
information that relates to their health condition, it has been said that they should at least
Chapter one: The principle of respect for autonomy and trust: a Western view
62
However, I would argue that Davies’s view would retain the idea of paternalism in the
medical context as doctors could find justification and support to provide the information
that they want to give, instead of what patients need and require, as he stated that
‘…developing trust entails full cognisance of the patient’s rights and of the doctor’s
responsibilities, including the recognition that doctors have other important duties to their
patients than solely respecting their autonomy’.273
In the same line with Davies’s view, Brewin who is a strong supporter of a trust based ethic
of healthcare argued that the strongest arguments against it being given priority in the doctor-
patient relationship are from those who he described as ‘anti-paternalist’ who would prefer
others to be given facts to make their own choices, aiming to respect their autonomy.274 He
himself seemed unhappy for others to be given facts about their health conditions and limited
their involvement in decision-making to being advised, which seems to be a firmly
paternalistic view. Brewin suggested that ‘[w]hat we need is better communication; more
explanation for those who need it, less for those who don’t; [sic] and greater empathy and
understanding of the patient’s real needs, fears, and aspirations’.275 Brewin did not stop his
attack on ‘anti-paternalists’ and ultimately autonomy, as he then argued that ‘[w]hat we don’t
[sic] need is unhelpful rhetoric; a wholesale attack on trust; excessive emphasis on ‘fully
informed consent’ and ‘autonomy’; and a serious distortion of priorities with a consequent
fall in standards of care’.276 Brewin then justified his argument for two reasons:
‘Firstly, because noble principles often give contradictory advice. Every patient has a right to full information. He also has a right to be treated with compassion, common sense, and respect for his dignity-a respect that is not usually enhanced by asking him, ‘Do you want us to be frank about all the risks or not?’ Secondly, because we are all the prisoners of time, the more time we spend trying to explain things, the less there is for other aspects of patient care.’277
With all due respect to Rhodes’s and Brewin’s views, these views would clearly retrieve the
notion of paternalism as they may be taken to suggest that the patient should just passively
attend hospital and leave the decision-making for doctors only. This idea of paternalism has
now no place in modern medical ethics. As the thesis has argued, acting paternalistically
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violates and breaches the patient’s autonomy to make a free choice and decision. In fact,
even the law,278 as will be discussed in Chapter three, has rejected the idea of paternalism.
Arguably trust should not be absolutely dismissed, but to regard it as the fundamental ethical
principle on which to base an appropriate approach to information disclosure would be
difficult to apply and defend. For example, although Rhodes holds that trust is vital in
medical ethics, she seems to attempt to adjust her view to accommodate it with the principle
of respect for autonomy. She argued that:
‘To be trusted, the doctor will also have to pay serious attention to the patient’s view of what is good. People like to have their own way, and when decisions are intimately concerned with the patients’ own body and life, differences between alternatives can be tremendously important to them.’279
Rhodes has admitted that ‘[s]ometimes a doctor’s view of what is best can be at odds with a
patient’s view. In some circumstances a patient will actually consider the doctor’s choice to
be no good at all.’280 She then argued that, as the doctor-patient relationship builds on
trusting doctors, that would not allow doctors to impose their view against the patients’ own
views.281 However, when Rhodes has concluded her discussion she seems to hold the
opposite view, as she has said: ‘In sum, in order for doctors to be trusted to a degree that
allows them to act for their patients’ good, they are committed to making themselves
professionally competent, caring, and respectful of patient values.’282
I would argue that Rhodes seems, on one the hand, to argue that trust is a vital ethical element
that should underpin medical ethics and allow doctors to act in their patients’ interests, which
would suggest that providing information to patients to enable them to make their own
decisions is less of a priority. On the other hand, she seems to contradict her argument, as
doctors should not impose their own view in order to respect the patient’s values and desires.
This shows that she seems to support the principle of respect for autonomy but at the same
time still holding the support of trust.
It seems from the arguments above that, nonetheless, the notion of trust may still have a
place in medical ethics, but more emphases on it would not be defendable. This is because
the notion of trust would undermine the patient’s view, values and wishes, as trust seems to
suggest that doctors can decide what information should be given and even may consent on
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behalf of the patients. This would show difficulties in how to set a standard of information
disclosure that just relies on trust, which prefers to empower doctors and marginalise
patients’ views and wishes.283 I have argued above that the principle of respect for patient
autonomy would give more power to the patient and balance the doctor-patient relationship.
Thus the notion of respect for patient autonomy is defendable and would give more
protection to patients and their views and wishes would be respected and considered. Thus,
respect for autonomy would require doctors to respect patients’ values and views and provide
them with sufficient information to make their free decision. Thus, as the thesis will argue
in Chapter three, it is the notion of the respect for patient autonomy rather than trust that
convinces the law to change to consider patients’ views and provide them with information.
3.3. Conclusion To conclude this discussion about the notion of trust, following the discussion of alternative
approaches to trust, the question remains whether the concept of trust can be used as the
overarching principle for determining the rights and duties of patients and doctors in respect
of information disclosure and consent, rather than seeing autonomy as the pre-eminent
principle that should be applied. With all due respect to some who have argued that the
notion of trust is a vital concept in the medical ethics context and plays an important role in
both patient consent and information disclosure, my conclusion is that it cannot fulfil such a
central role.284
I would suggest that a preference for trust over the principle of respect for autonomy is not
appropriate, since it would inevitably reintroduce the idea of paternalism. Patients’ views
and decisions would not be regarded as having as great a significance as they do under the
principle of autonomy, and this would reverse the trend that I set out earlier.
I would argue that trust as the foundation of information disclosure would not be the right
and defensible approach since it has been observed that:
‘Trust is necessary in asymmetrical relationships with all their imbalances of knowledge and power. It is, thus, largely reliant on ignorance and uncertainty, and may be protected by secrecy. The stranglehold that doctors traditionally enjoyed over medical knowledge and information about the quality of healthcare has been significant in sustaining trust.’285
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punishment.’319 It is illegal to perform an operation or treatment on a competent patient
without his valid consent under UK law and such an act might also be a breach of the
patient’s rights under Article 3.320 So, article 3 could also be seen as protecting the
patient from being subjected to any medical treatment that he does not want, again
supporting the patient’s autonomy in deciding whether or not to accept treatment.321
Article 8(1) states that; ‘Everyone has the right to respect for his private and family life,
his home and his correspondence.’322 This article protects a person’s ‘physical integrity’
as this can be seen as a part of the right to respect the private life of the patient:
‘In the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention.’323
In the recent case of Montgomery, the Supreme Court considered the notion of
patients’ rights and their protection by human rights’ declarations, stating that
‘Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values.As Lord Scarman pointed out in Sidaway’s case, these include the value of self-determination.... As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by article 8 of the European Convention on Human Rights. The resulting duty to involve the patient in decisions relating to her treatment has been recognised in judgments of the European Court of Human Rights... as well as in a number of decisions of courts in the United Kingdom.’324(Original emphasis).
However, the Supreme Court also stressed that the value of patients’ rights is
recognised by English common law. Therefore, while acknowledging the influence of the
ECHR, its Articles were not directly applied and in fact rather more attention was paid to
national medical regulations and standards, such as those of the General Medical Counsel
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as, the notion of full information disclosure) may demand more information than what the
law has considered as sufficient.331
This can be observed in the GMC guideline which has acknowledged and recognised some
ethical principles that the law may not require. For example, the issue of how doctors should
present information to the patient. ‘Consent: patients and doctors making decisions together’
guidance advised doctors to provide:
‘Clear, accurate information about the risks of any proposed investigation or treatment, presented in a way patients can understand, can help them make informed decisions. The amount of information about risk that you should share with patients will depend on the individual patient and what they want or need to know. Your discussions with patients should focus on their individual situation and the risk to them.’332
In another other section, the guidance requires doctors to inform the patient about risks,
saying that doctors ‘...must tell patients if an investigation or treatment might result in a
serious adverse outcome, even if the likelihood is very small. You should also tell patients
about less serious side effects or complications if they occur frequently…’.333 (Emphasis
added). Interestingly, the guidance does not leave the phrase ‘a serious adverse outcome’
unexplained; in its endnote it is explained that: ‘An adverse outcome resulting in death,
permanent or long-term physical disability or disfigurement, medium or long-term pain, or
admission to hospital; or other outcomes with a long-term or permanent effect on a patient’s
employment, social or personal life.’334 This seems to be a good example of a situation where
the GMC ethical guideline arguably requires more from doctors than is demanded by law.335
Despite the seemingly higher standard set by the GMC guideline, the standard of information
disclosure that will be examined in the following Chapters is the standard that requires
doctors to disclose sufficient and understandable information to enable a competent adult
patient to be self-determining and to respect his/her autonomy. Thus, the ethical standard
that has been proposed will be considered throughout the following Chapters to demonstrate
if the law has met such a requirement or if the law has required less or more than this.
Another example of a tension between medical ethics, particularly the principle of respect
for autonomy, and English law can be seen where a competent adult patient wishes to end
his/her life with the active assistance of other (assisted suicide). The stance of the law as that
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obligation. A legal common law duty is nothing else than the enforcing by law of that which
is a moral obligation without legal enforcement.’342
The potential conflict between ethical and legal principles has been specifically considered
by some case law. A notable example is Re A (Children) (Conjoined Twins: Surgical
Separation).343 The case involved conjoined twins, where J was stronger than M and could
live independently but M relied on the organs of her sister. Medical evidence showed that,
if the twins were left as they were, M’s demands on J’s body would strain J, so both would
die. However, if the separation operation was performed, M would inevitably die, whereas
for J there was a strong chance to stay alive independently. The children’s parents refused
to give consent for the operation. Doctors then sought a court declaration that it would be
lawful to operate on the conjoined twins. The declaration was granted by the High Court but
the decision was appealed. The Court of Appeal dismissed the appeal.344 It has been said that
in Re A the question of both medicine and ethics came together before a court of law.345
Ward LJ has observed the difficulty of the issue; he stated that:
‘I freely confess to having found it exceptionally difficult to decide—difficult because of the scale of the tragedy for the parents and the twins, difficult for the seemingly irreconcilable conflicts of moral and ethical values and difficult because the search for settled legal principle has been especially arduous and conducted under real pressure of time.’346
The Court of Appeal acknowledged the matter of ethics in the case, but sought to distance
itself from the ethical debates.347 Thus, the focus of the Court of Appeal was to say that it
was considering the matter on the legal principles not on ethical principles, as Ward LJ held
that:
‘It is, however, important to stress the obvious. This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us—a situation which is quite unique.’348
Further, in relation to the matter which the Court of Appeal was considering, Ward LJ has
made the position of the court clear as he has stated that: ‘Deciding disputed matters of life
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Sharia is an Arabic word which means the path or the way that the water is running through.8
Therefore, as has been said, ‘water symbolises the source of life, so the Sharia represents
the source of Muslim existence.’9 The term Islamic Sharia or Sharia includes all aspects of
the Islamic religion, including worship, prayers, faith, ethics, laws and so forth.10 However,
Islamic Sharia has primary, secondary and supplementary sources.11
2.2. The two primary sources of Islamic Sharia Generally, the two primary sources of Islamic Sharia are applicable to almost all Islamic
schools of thought. The foundation of Islamic Sharia is based on the two primary sources:
the first is the holy Quran, which contains Allah’s words (6326 verses (Ayah) in 114 chapters
(Surah)) and each chapter in the holy Quran is given a title.12 The holy Quran mainly deals
with matters such as Islamic faith13 and worship,14 along with narratives about some
sciences15 and different ancient religious and historical texts (such as the story of Judaism,
and Christianity). The holy Quran in its entirety is not a codified law but around 500 verses
of the holy Quran deal with what are regarded as legal rulings.16 Hence, the Quran, as
Reinhart observed:
‘[I]s a source of knowledge in the way that the entire corpus of legal precedent is for the common law tradition: not as much as an index of possible rulings as a quarry in which the astute inquirer can hope to find the building blocks for a morally valid, and therefore, true system of ethics.’17
The other primary source of Islamic Sharia is the Messenger Mohammad’s PBUH traditions,
called in Arabic Sunnah - the term in Arabic means ‘a clear path’. Sunnah contains his PBUH
sayings and actions together with lessons implied from his silent or tacit approval.18 Allah in
more than one verse in the holy Quran gives the authority to the Messenger PBUH Sunnah
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as a source of Islamic Sharia. The holy Quran in translation states ‘...and accept [Muslims]
whatever the Noble Messenger gives you; and refrain from whatever he forbids you....’.19
The Messenger’s PBUH Sunnah was collected and recorded many years after his PBUH
death by many Muslim scholars in several books, which were labelled and referred to by the
name of the collector.20 The most famous authentic collections for Islamic Sunni schools
(discussed below) are: Sahih Al Bukhari and Sahih Muslim.21 The name of these two books
literally mean: Al Bukhari’s collection22 and Muslim’s collection.23
In general, Sunnah works in accordance with the holy Quran in three major ways:24 (1) It
may retell what has been mentioned in the holy Quran.25 (2) It may explain a range of verses
in the holy Quran.26 (3) It may potentially and importantly encompass a ruling that the holy
Quran is silent about.27 Therefore, both the holy Quran and the Sunnah ‘have constituted a
foundational resource for Muslim beliefs, values and practices.’28
Based on Reinhart’s statement above, I would argue that Islamic Sharia and English common
law can learn and benefit from each other’s experiences although they have different origins.
As we have already seen, Islamic Sharia has no barriers to learning and exchanging some
ideas from other legal systems’ experiences so long as they are not in conflict with its basic
principles. Similarly, English common law has benefited from some of Islamic Sharia
experiences. For example, English common law has adjusted, adopted and applied some of
Islamic Sharia legal aspects, Makdisi has argued that:
‘The Islamic legal system was far superior to the primitive legal system of England before the birth of the common law. It was natural for the more primitive system to look to the more sophisticated one as it developed three institutions that played a major role in creating the common law. The action of debt, the assize of novel disseisin, and trial by jury introduced mechanisms for a more rational, sophisticated legal process that existed only in Islamic law at that time. Furthermore, the study of
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the characteristics of the function and structure of Islamic law demonstrates its remarkable kinship with the common law in contrast to the civil law.’29
He concludes:
‘Finally, one cannot forget the opportunity for the transplant of these mechanisms from Islam through Sicily to Norman England in the twelfth century. Motive, method, and opportunity existed for King Henry II to adopt an Islamic approach to legal and administrative procedures. While it does not require a tremendous stretch of the imagination to envision the Islamic origins of the common law, it does require a willingness to revise traditional historical notions. ’30
Further it has been argued that English common law has been influenced by some Islamic
Sharia jurisprudence (Fiqh) books which have had an impact on English legal writers and
legal principles, for example during the 18th and 19th centuries while India (where Islam and
Islamic law have been practised for a long time) was under British colonisation, some
English’s writers and legal principles in England have been influenced by the Islamic Hanafi
school31 as result of the translation of a huge part of scholar Ali al-Marghinani’s book al-
Hiddaya al-Marghinani (The Hedaya)32 by Charles Hamilton.33 Those examples and others34
show with no doubt some influences of Islamic Sharia on English common law.
Clearly, there are some areas where Islamic Sharia and English law are unlike and cannot be
in agreement such as the Islamic Sharia practice of punishment by death. Nonetheless, the
focus here is on an area where both systems have traditionally applied the professional
standard of care (in the UK, at least until the Montgomery case was decided)35 and therefore,
historically, have been broadly in agreement with each other.
For the purposes of this discussion, there are several interesting consequences of comparing
and contrasting English and Saudi Arabian law in this area. First, this permits an analysis of
the rationale(s) for the reliance of both systems on the professional standard. Second,
analysis of the change of emphasis in English law allows exploration of the reasons for
change and what influenced the Supreme Court’s decision. Whether or not the same (or
similar) circumstances exist in Saudi Arabia will inform the extent to which, if at all, it would
be feasible/acceptable to draft such a change into its law. The discussion in this Chapter of
Sharia law and ethics will directly affect the concluding recommendations of the thesis.
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principles.74 Thereafter, that view, agreed by the majority of Muslim scholars
(Mujtahedeen), becomes a common principle adopted by Muslim nations. It must be
respected by Muslims and cannot be changed.75
2. Qiyas (analogical reasoning)
Qiyas – a singular word – means comparing something to something else that has the same
characteristics. If there is no clear statement in the holy Quran or the Messenger’s PBUH
traditions, or there is no Ijma, Muslim scholars have to identify a ‘correlation with an already
accepted norm.’76 For example, the holy Quran states that the use of wine is prohibited;77
therefore, as substances such as heroin or cannabis cause the same kind of intoxicating
condition, based on the principle of Qiyas, these kinds of drugs are banned.78 However, a
Qiyas is different from Ijma as follows: 1) Qiyas can be issued by one scholar or more,
whereas Ijma has to be issued by a majority of Muslim scholars, 2) Qiyas is a way to classify
or accommodate a new case within an old or existing approach to an issue which has the
same character, but Ijma is for establishing or introducing a new rule to Islamic Sharia.79
However, Qiyas like Ijma must be respected and cannot be changed.80
After having discussed the secondary sources of Sunni Islamic Sharia (Ijma and Qiyas), now
an outline of supplementary sources and principles will be presented:
2.5. The Sunni supplementary sources These sources are also considered and applied by Muslim scholars when making their
declarations (Fatawa).
1. Revealed laws preceding the Islamic Sharia. This source of Islamic Sharia shows that
Islam has a relationship to previous divine beliefs, specifically Judaism and Christianity;
many verses in the holy Quran have established this, such as in the areas of crimes and
punishments, where the holy Quran in translation declares:
‘And there (in the Torah [Bible]) We [Allah] had ordained for them a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retribution, though he who forgoes it out of
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of the materials that are cited as references for Islamic Sharia medical ethics are based on
the Islamic Sharia primary or secondary sources.147
Islamic Sharia has a sizeable heritage of knowledge and material to assist in considering
issues of medical ethics and in resolving new questions which have recently emerged and
there are examples of literature in Arabic that illustrate this.148 An early instance of this in
the 9th century was the work of AlRuhawi,149 Adab alTabib (Practical Ethics of the
Physician).150 The main focus of the book was on doctors’ characters: how they should
behave themselves and how they should deal with their patients.151 The book also focused
on doctors’ training and education, and how to treat patients and take care of them in a way
that respects patients’ dignity and the profession of medicine.152
AlTabari153 has summarised key principles of medical ethics that have been acknowledged
by Muslim society to arise from Islamic Sharia as follows:
‘The physician ought to be modest, virtuous, merciful, not slanderous or addicted to liquor and speak no evil of men of repute in the community or be critical of their religious beliefs. He should be honest towards women and should not divulge the secrets of his patients… He should avoid predicting whether the patient will live or die. He should speak well of his acquaintances, colleagues, and clients and not be a money grabber. He should dress in clean clothes, be dignified.... He ought not to lose his temper when his patient keeps asking many questions, but should answer gently and patiently. He should treat the strong and the weak, the rich and the poor, the wise and the illiterate alike, and God will reward him if he offers medical help to the poor… He should be punctual and reliable... avoiding wrangling about his fees with a patient who is very ill, but rather he should be thankful no matter how much he is paid.’154
However, although there is a significant amount of material relevant to Islamic medical
ethics, most of it, as Padela notes, is scattered in Islamic Sharia sources which require
investigation and the formulation of principles in this specific context.155
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4.2. The relationship between Islamic religion, ethic and law Firstly, as has been argued above and emphasised, Islamic religion, ethics and law are based
on the same sources. Therefore, to discuss any religious or ethical or legal matters, the same
sources must be used and applied.156 However, Reinhart has observed in this regard that:
‘Islamic law is more basic to Islamic ethics than is either Islamic theology or philosophy’.157
This observation by Reinhart can be justified because ‘...moral and legal acts are so
intricately related in the Sharia to submission to God, by contrast with a far greater autonomy
from religion accorded morality and law in Christianity’.158 Nevertheless, arguably there is
a bright and crucial line to distinguish whether the issue is only a religious and ethical matter
or is a religious, ethical and legal matter.159 This has an obvious and significant bearing on
how conduct which is not in accordance with Islamic Sharia is dealt with, and this will
include breaches of obligations by doctors. To make that clear, I will illustrate it in the
following example:
Islam prohibits lying,160 so to not always be truthful161 is a religiously and ethically wrong
action and whoever lies is committing a sin. Muslims who lie are in disobedience of Allah’s
orders, so the liar will be judged for that in the afterlife.162 However, the question is: by
lying, is the Muslim breaching Islamic law? In other words, should he or she be disciplined
for all types of lie in this life? The answer commonly is no, except specific instances of lying:
for example, that which is committed when a Muslim gives evidence under oath (perjury).163
In this situation, the action of lying is not only religiously and ethically wrong, but also
obviously legally wrong.164
Therefore, it can be said that, in order to distinguish if an action might be only religiously
and ethically wrong, one needs to look at whether Islamic Sharia considers that action to be
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in a breach of Islamic law (as a criminal or civil wrong).165 So for example, murdering an
innocent person is religiously, ethically and legally wrong, because it is not only sinful, but
also a crime.166 Other actions might be only ethically and religiously wrong, such as not
returning a greeting to another person in a similar or better way. Such behaviour is ethically
and religiously wrong because of the lack of courtesy, but it is not legal wrong as it is not a
crime.167
Secondly, as I have mentioned above, it is important to note that under Islamic Sharia, an
issue (whether it involves religion, ethics or law) may be classified in five different ways
depending on the degree of obligation and value ascribed to adhering to it. It has been argued
that,
‘the scale of the values attached by Islamic law to the acts of man comprises five values, whereas other legal systems know only three values: an act may be mandatory in law, prohibited or indifferent. In this last category are lumped together the three Islamic categories of praiseworthy, blameworthy and indifferent’.168
These five rulings or values (al-Ahkam al-Khamsah) concerning the degree or scale of
permissibility of an action in Islamic Sharia, were introduced to Islamic Sharia
jurisprudence by Muslim scholars at various times during the history of Islam and scholars
have also determined which actions should be classified under each ruling.169 The five
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In summary, from what has so far been discussed, it can be said that the sources of Islamic
Sharia ethics and legal principles are the same. Therefore, there may be a very fine line to
differentiate between whether the matter is an ethical and religious one only, or it is an
ethical, religious and legal matter. The difference is significant however, as this will have
consequences for whether an action can be dealt with in the courts as a violation of Islamic
Sharia law. Of course, as Chapter four will illustrate, legislation makes it clear when some
matters can become before the courts, but legislation does not cover all matters for which
there may be legal actions. Further, the thesis has argued that any ethical, religious and legal
matter should be considered under the five rulings for determining its classification. Finally,
it should be remembered that CEHP2013 is both an ethical and a legal code.
In the following, the thesis will move on to discuss the issue of Islamic Sharia’s Saudi
Arabian medical ethics’ acknowledgment of the principle of respect for autonomy in regard
to competent adult patients’ consent and the issue of information disclosure. It should be
remembered that, as there are not many sources that deal with the issue of information
disclosure and autonomy, the discussion proceeds on the limited material that is available.
5. The principle of respect for autonomy based on Islamic Sharia its use in Saudi Arabian medical ethics Although there are few sources directly dealing with information disclosure and consent to
treatment, Islamic Sharia can be said to manage many aspects of health and medicine by
establishing a number of principles and rules regarding how to deal with fundamental ethical
and legal matters.188 According to Islamic Sharia teaching, human beings are born free with
full rights and freedoms that enable them to act without restriction and which protect them
from any offences or reckless actions. Caliph Omar Ibn Alkhattab189 thirteen centuries ago
made a notable declaration of human rights when he asked, ‘when did you enslave people
who have been born free?’190 Islamic Sharia recognises the basic rights of all humans, not
just those of Muslims. This recognition of human rights based on Islamic Sharia has been
acknowledged by the Saudi Arabian BLG1992 which declares that: ‘The State shall protect
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wrong is based on the outcome of it irrespective of the act itself, which has been developed
based on Mill’s view. By contrast, deontology has been based on Kant’s view that the
decision as to the ethical rightness or wrongfulness of an action is based on the action itself,
regardless of the circumstances or the consequences. It was concluded that there has been
no universal agreement on which of these two approaches is correct, but that both have been
regarded as supporting the principle of respect for autonomy.
Bering in mind the concept of the five rulings, I would argue that the Islamic Sharia view
on judging whether an action is ethically right or wrong seems to combine aspects of both
consequentialism/utilitarianism and deontology. As AlBar and Pasha have argued that: ‘In
Islamic teachings, though the intention is of paramount importance, the means to fulfil such
an intention bear the same value. However, Islamic teachings look to the consequences and
if we can predict an evil or bad result then that action should not be taken.’218 In fact, the
importance of the good intention can be understood from the Messenger PBUH saying that:
‘(The value of) an action depends on the intention behind it...’.219 It can be said that, this
Messenger PBUH statement is comparable to the approach of consequentialism/
utilitarianism as the importance is placed on the intention (outcome) regardless of the action
itself. Despite this, Islamic Sharia does not state that this is the only approach, and this saying
by the Messenger PBUH must be read and understood in the light of the rules that have been
stated by the holy Quran and the Messenger PBUH. For example, some actions are wrong
in themselves, such as stealing, so though the intention of the person to steal is for helping
others (a good outcome), it does not justify the action. Thus, the Messenger PBUH in another
saying has stated that:
‘The lawful is clear and the unlawful is clear, and between that are matters that are doubtful (not clear); many of the people do not know whether it is lawful or unlawful. So whoever leaves it to protect his religion and his honour, then he will be safe, and whoever falls into something from them, then he soon will have fallen into the unlawful....’220
This suggests that like deontology, there are good and bad actions which are universal and a
person can judge their ethical rightness or wrongfulness, and by doing so he/she can make
his/her decision.
As the Messenger PBUH has said: ‘Do not let yourselves be yes-men, saying: If the people
are good then we will be good, and if they are wrong then we will be wrong. Rather, make
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severe harm or death to the patient, consenting to it or providing it would be ethically and
religiously wrong. For example, the GPSRI has ruled in regard to the use of alcohol (wine)
as treatment that: ‘Wine is Haram (prohibited) and it is not permissible to use it as a
cure...’.265 Further, in relation to Moharam treatment, CEHP2013 has placed ethical duties
on doctors to not proceed or respect patients’ wishes, for example, in the following:
‘1. It is not permissible to use or perform any religiously forbidden procedure or medication unless in necessary cases. These (procedures/medications) include plastic surgeries, treatment of infertility, or use of pork-derived drugs, and other forbidden things. 2. Refrain completely from doing hymenorrhaphy or hymenoplasty (hymen reconstruction surgery) whether the patient is young or old, married or not, unless for religiously permissible conditions. 3. Refrain from treating infertility with religiously impermissible methods. 4. Refrain from religiously forbidden plastic surgeries.’266
If a patient consents to Moharam treatment that leads to death or severe harm or to something
that is against Islamic Sharia principles, he/she has committed a sin, because of his/her
disobedience of Allah’s will and because he/she is putting him/herself and his/her health in
a hazardous situation, so he/she is both religiously and ethically wrong.267 Consenting to
Moharam treatment which results for example in his/her death or severe harm would be
sometime considered an act of suicide, which is banned by Islamic Sharia: ‘and do not kill
yourselves [or one another]. Indeed, Allah is to you ever Merciful.’268 Even if there is no
harm as a result, the patient’s consent is both sinful and unethical and doctors who proceeded
with such treatment would also be regarded as guilty of a sin and unethical practice.
After having discussed the issue of limitations on respect for patients’ autonomy in
accordance with Islamic Sharia principles, the thesis will now move on to discuss the issue
of where there is complete respect for patients’ autonomy to consent to or refuse treatment.
2) A complete respect for patient autonomy A. The last three rulings
Under the last three of the five rulings, a competent adult patient who is conscious can
consent to or refuse medical treatment for any reason or no reason.
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consequences for the appropriate ethical approach to seeking consent to treatment and to
information disclosure.
Therefore, in the following part, this Chapter will examine the principle of respect for
autonomy in respect to the requirement for information disclosure in accordance with
Islamic Sharia. As with the discussion of consent, there are few sources that have
specifically dealt with this issue. However, I have drawn points from those that are available
and, because of the limited reference to the Islamic Sharia sources and Saudi Arabian
medical ethics, I will also refer here to commentators’ views, where they have based them
on their understanding of Islamic Sharia sources.
5.2. The importance of information disclosure and respect for autonomy Since there is no straightforward reference in the Islamic Sharia sources that has specifically
dealt with the issue of information disclosure, I will refer to a general statement in Islamic
Sharia sources that can be applied to the issue.
The Messenger PBUH said: ‘Leave that which makes you doubt for that which does not
make you doubt.’281 Based on this statement it can be argued that one of the Islamic Sharia
principles places importance on Yaqin (certainty) when a person is considering making a
decision.282 Further, an Islamic Legal formula283 states: ‘To imagination without foundation
in fact, no weight is given.’284 Thus, it can be said that, for autonomy to be respected in terms
of making a decision, it is fundamental from the Islamic Sharia perspective that the decision
should be based on knowledge and information.285 For a decision to be respected based on
the Islamic Sharia understanding, it must be built on clear reasoning and information.286
Hence, ‘it could be possible to say that absolute knowledge is predominant to individual
autonomy’.287 Therefore, I would argue that the right of patients to receive information can
be established in Islamic Sharia medical ethics based on doctors’ duties to respect autonomy,
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since it must be understood that, under any concept of respecting choice, sufficient
information is required to make that choice.
5.2.1. Doctors’ duty to disclose information In order to understand the stance of Islamic Sharia and Saudi Arabian medical ethics on
information disclosure, I will quote a statement in CEHP2013 which has recognised an
ethical duty on doctors to provide information. It should be remembered that CEHP2013 is
both an ethical and a legal code so I will reconsider the same statements in Chapter four
when I discuss the topic from a legal angle. Based on this, I will consider the following
issues: doctors’ duty to inform patients, what kind of information should be given, the issue
of understanding, the acknowledgment of therapeutic privilege and patients’ right to refuse
information. In addition to this statement, I will apply Islamic Sharia general principles that
can be used to refer to this duty.
CEHP2013 has stated that:
‘The healthcare practitioner should present enough information in a language that the patient can understand about what he/she [the doctor] will do, and what is required from the patient, the possible consequences of the patient’s decisions, as well as potential complications and risks.’288
Based on the above statement it is clear that doctors have an ethical duty to inform their
patients. Islamic Sharia has considered the requirement for information disclosure as a
means of respecting patient autonomy but it may also be justified by the concept of doctors
needing to act with truthfulness and to provide appropriate advice.289 The holy Quran in
translation states in general that: ‘O believers, do not stray from the path of God, and be with
those who are truthful.’290 From this, it can be understood that, as part of Islamic Sharia
medical ethics regarding doctors’ characters, doctors should be truthful, kind, modest and
advisers to their patients.291 Such an acknowledgment by Islamic Sharia and CEHP2013
shows the recognitions of doctors’ ethical duty to disclose information to patients. Having
established that, the question which presents itself here is what information should be
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5.2.2. What should be disclosed CEHP2013 has provided the phrase ‘enough information’292 to state what information
should be disclosed. I would suggest that this is unhelpful because it may not only cause
ethical, but also legal, uncertainty as I will discuss in Chapter four. CEHP2013 does not give
a definition of what is meant by ‘enough’ information although there is some further
guidance on information disclosure. CEHP2013 states in chapter 2(C)1 that information
should include what the doctor is proposing to do, his instructions to the patient and ‘the
possible consequences of the patient’s decisions, as well as potential complications and
risks.’293 Based on the view of Islamic Sharia medical ethics in respecting patients’
autonomy, CEHP2013 has also stated the doctors’ duty to inform the patient as follows:
‘Tell the patient or whoever is acting on his/her behalf as soon as possible about the patient’s health condition, its causes, its possible complications, as well as the benefits of the diagnostic and therapeutic procedures. Additionally, introduce them to appropriate alternatives in diagnoses and treatment in a clear and honest way’.294 (The statement will be further discussed in Chapter four).
The key factor here is that doctors are under an ethical (and a legal) duty to provide patients
with ‘enough information’. Nonetheless, there remains a lack of clarity both as to how the
standard of ‘enough information’ is to be judged and in other specific issues relating to
information disclosure to the patient.
In regard to the quality of the provided information, it should be accurate and reflect the state
of the patient’s condition, as doctors have a duty to tell the truth, which derives from a basic
principle of Islamic Sharia that not telling the truth is a very serious sin. In one of
Messenger’s PBUH sayings: ‘...Falsehood leads to vice and vice leads to the Fire (Hell), and
a person persists on telling lies until he is enrolled as a liar.’295 Hence, Muslim doctors should
normally provide the patient with correct and accurate information, although there may be
an exception to that which I will discuss below in regard to the notion of therapeutic
privilege. In most cases, however, telling the truth would be regarded as essential and, in
addition to the principles mentioned, it has been claimed that the patient-doctor relationship
is based on trust.296 The concept of trust also requires doctors to be truthful with patients,
and not to exaggerate about the case.297 Therefore, in providing patients with information
that they ask for or need, doctors should tell the patient truthfully information that accurately
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reflects the nature of the patient’s condition and the course of treatment that should be
taken.298
To demonstrate what information should ethically be disclosed, I would argue that it would
be useful to consider Western medical ethics which were discussed in Chapter one. Full
disclosure may be proposed as an ethical an ideal, but as I have explained, there are
difficulties with setting this as a legal/ethical standard for information disclosure. The same
difficulties would arise if it were considered that Islamic Sharia required full information
disclosure in order to meet the appropriate standard. However, I would argue that the ethical
standard of care I have proposed in Chapter one, to provide the patient with sufficient and
understandable information to enable him/her to be self-determining, is also compatible with
Islamic Sharia medical ethics. Islamic Sharia general principles focus on providing truthful
and accurate information in order to assist the patient to make his or her own decision, and
this is in line with a requirement upon doctors to provide sufficient information. This is also
supported by CEHP2013 which requires doctors to disclose ‘enough’ information which
may be regarded as being the same as ‘sufficient’ information. The principal problem
remaining is in establishing whether the standard has been met, whether doctors or the
patient’s perspective should be used.
My argument is that Islamic Sharia principles, while focusing on doctor’s duties of
truthfulness and emphasising the concept of trust, have at their heart the same reason for
requiring information to be disclosed as in the Western tradition; namely, to protect patient
autonomy. While there are more limitations on patient autonomy under Islamic Sharia, the
need for disclosure of information so that the patient can make an informed decision is the
same, although the consequences in terms of respecting the decision that has been made may
differ from those which would be advocated under the approach to individual autonomy in
Western medical ethics.
Accordingly, what follows from this in applying Islamic Sharia principles is that the concept
of respect for autonomy needs to put an ethical duty on doctors to disclose sufficient and
understandable information to enable a competent adult patient to be self-determining and
to respect his/her autonomy. The way in which Saudi Arabian medical law has approached
this issue will be considered in Chapter four. As well as the need for information to be
sufficient, my proposed ethical standard from Chapter one also requires consideration of the
issue of patient understanding, which is dealt with next.
298Ibid.
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5.2.3. Doctors’ duty to ensure the patient can understand the information CEHP2013 has stated that ‘enough information’ should be provided in an understandable
language for the patient.299 That may suggest it is not enough just to supply the patient with
information: that information should also be understandable. However, the phrase ‘...in a
language that the patient can understand’300 seems to refer only to the language itself being
understandable, not to a doctors’ duty to ensure the patient can understand the information,
which is rather different. CEHP2013 has no further explanation of what the doctor’s duty to
ensure that the patient can understand the given information might be, so the notion of a
wider duty to seek to ensure that the patient has understood remains unclear. This issue has
not been addressed in legislation either. This suggests that there is a significant absence of
recognition of an important aspect of a doctors’ duty in Saudi Arabian medical ethics and
also in its law.
However, such a duty can be based on Islamic Sharia general principles. Muslims have a
duty to give advice to one who seeks or needs it, as Messenger PBUH said that Muslims
should give counsel to people about what would be of benefit to or suitable for them.301
Therefore, it can be understood that one of the doctors’ obligations, placed on them as an
ethical and religious duty, is to give advice to the patient. That advice should be truthful,
clear, and understandable and relate to the patient’s case,302 because normally a patient is
not as educated and knowledgeable as their doctors about complex medical terms and
procedures.303 Additionally, based on doctors’ ethical and religious duty to advise, the
information that is given to the patient must include a clear explanation of the diagnosis,
prognosis, proposed treatment, and available and alternative treatments or operations that
involve lower risks, to allow patients to judge and to make their choices in a properly
informed way.304 For example, a doctor should not operate on a patient unless there is no
other suitable way to treat him/her,305 and the doctor should advise the patient about available
alternative treatments.
I would argue that the proposed ethical standard I have set in Chapter one can be applied to
Islamic Sharia and Saudi Arabian medical ethics, as the patient should be provided with
sufficient and understandable information to respect his/her autonomy and to be self-
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body legal.8 There are some limited exceptions to the need for consent, such as the treatment
of an incompetent adult in an emergency.9 However, Lord Donaldson clearly stated the
importance of gaining patients’ consent, as His Lordship declared:
‘The law requires that an adult patient who is mentally and physically capable of exercising a choice must consent if medical treatment of him is to be lawful, although the consent need not be in writing and may sometimes be inferred from the patient’s conduct in the context of the surrounding circumstances’.10 (His Lordship’s emphasis)
His Lordship’s statement shows that prima facie it is unlawful for doctors to examine or
conduct a treatment upon a patient without the competent adult patient’s legally valid
consent. Furthermore, although consent legalises interference with the patient’s body, it
limits that interference to the scope of that consent, which must not be exceeded.11
Furthermore, consent to treatment can be withdrawn.12 In this way, consent protects both the
patient’s freedom of choice and bodily integrity.13 Some of those principles are similar to
the stances of both Islamic Sharia and Saudi Arabian medial law as will be discussed in
Chapter four.
3. Legal consequences of proceeding without a competent adult patient’s consent Under English law, it has been stated in Airedale that: ‘Any treatment given by a doctor to
a competent patient which is invasive (i.e. which involves any interference with the physical
integrity of the patient) is unlawful unless done with the consent of the patient; it constitutes
the crime of battery and the tort of trespass to the person’.14 Therefore, the legal
consequences of a treatment or operation on a competent adult patient that has proceeded
without consent require to be examined further in order to demonstrate the seriousness in
which violations of respect for autonomy in the sense of bodily integrity and freedom of
choice are held.15 In the following, the thesis will examine the legal consequences of treating
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The approach of English law to considering whether a competent adult patient’s consent
furnishes a defence to battery is to require what is called a ‘real consent’, as Bristow J stated
in Chatterton.60 The case was the first under English law to consider the concept of battery
in medical cases.61 It is significant because it sought to draw a distinction between failures
of information disclosure that would invalidate consent, and hence lead to an action in
battery, and failures which would not invalidate consent but which should be dealt with
instead by an action in negligence. It involved a patient who was in need of an operation to
remove the pain associated with the scar of a previous hernia operation. The doctor was a
specialist in this kind of pain treatment and the operation relieved the pain but only
temporarily. The doctor gave the patient an injection, which was unsuccessful in removing
the pain and caused the patient to lose the sensation in her right leg, which affected her
mobility.62 The patient claimed that her consent was not legally valid as the doctor did not
inform her about the risks.63 The case failed in battery, because the patient had understood
the general nature of the operation and ‘…she was under no illusion…’64 about it so her
consent was real.
Bristow J established that:
‘It is clear law that in any context in which the consent of the injured party is a defence to what would otherwise be a crime or civil wrong, the consent must be real....In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended and gives her consent, that consent is real...’65
Bristow J held that ‘...the cause of the action on which to base a claim for failure to go into
risks and implications is negligence, not trespass’.66 He justified his judgment not to consider
the action as battery because: ‘...it would be very much against the interests of justice if
actions which are really based on a failure by the doctor to perform his duty adequately to
inform were pleaded in trespass’.67 Therefore, Bristow J’s judgment importantly established
that a consent deemed to be ‘real’ in the sense described can be a defence for doctors against
the claim of battery.68 Therefore, it seems likely that a consent that includes two elements –
provision by the doctor of broad information of the nature of the treatment or medical
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3.2.2.1. Information disclosure and negligence Information is one of the vital elements to a patient being able to consider whether to give
consent to medical treatment. However, as has been discussed, the consequences of failing
to obtain a legally valid consent from a competent patient differ from those where a legally
valid consent has been obtained but without the provision of adequate information about risks
and alternatives to treatment. The former results in either civil or criminal actions in battery,
trespass to the person or assault; the latter are dealt with by the civil tort concept of
negligence.73 Hence, ‘[a] claim based on negligence is apt when the claimant has given his
consent to an act of the general nature of that which is performed by the defendant but there
is a flaw in this consent and, as a result, there has been no consent to certain concomitant
features of the act of which he was unaware’.74
Broadly, as noted previously, there are three factors that must be established in order for a
patient to succeed in a case of alleged negligence in information disclosure, and these will
now be discussed in turn.
A. The Duty of Care The concept of the duty of care has been recognised by English law for a long time.75 It has
been said that ‘a duty of care is an obligation on one party to take care to prevent harm being
suffered by another’.76 It applies ‘whenever one person can reasonably foresee that his
conduct may cause harm to another’.77 In Donoghue v Stevenson78 Lord Atkin recognised
what is called the ‘neighbour principle’.79 As His Lordship observed: ‘in English law there
must be, and is, some general conception of relations giving rise to a duty of care, of which
the particular cases found in the books are but instances’.80 Hence, Lord Atkin asserted that:
‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’81
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disclosure cases, there have been twodistinguishable stages; first, the doctor-centred stage
where by applying the professional standard of care doctors’ views were given more priority.
Second the patient-centred stage, where courts give more consideration to patients’
autonomy and rights.
The Doctor-centred stage (the professional standard) The professional standard can be described as a standard that places a duty on doctors to
disclose information to patients that reasonably prudent doctors would have disclosed to
patients in the same situation.127
In Blyth v Birmingham Waterworks Co128 Alderson LJ stated that ‘negligence is the omission
to do something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do’.129 A reasonable person has been described colourfully as ‘the
man in the Clapham omnibus’.130
This test of reasonableness can also be applied to professional practice such as medicine.131
However, this test has been modified to take account of the fact that when a person is acting
in the exercise of professional skills, it would not be appropriate to judge them simply against
the standard of the average reasonable person. In the case of doctors, therefore, a professional
practice standard was developed, initially in the leading Scottish case of Hunter v Hanley.132
The case involved a patient who was given an injection, but suffered an injury as a result of
the breaking of hypodermic needle. She claimed that the injury was caused by the defender’s
negligence as he failed to exercise a proper standard of care and competence.133 The pursuer
was successful at trial, which was heard by jury, but the case was remitted to the Court of
Session to consider whether the jury had been misdirected on the test for negligence. Lord
President Clyde observed that:
‘To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all, it must be proved that there is a usual and normal practice. Secondly it must be proved that the defender
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has not adopted that practice, and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.’134
Accordingly, it was the practice of the profession, or a ‘custom test’ that was set which
examines a doctor’s conduct against the normal conduct of his profession or craft.135 This
test is applied in other areas of professional negligence.136 In regard to the medical
profession, Lord President Clyde concluded that ‘the true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of
such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care’.137
The defender’s motion was upheld and a new trial was ordered on the basis that there had
been a misdirection on the law.
The test in Hunter was upheld in the later English case of Bolam v Friern Hospital
Management Committee.138 These cases therefore have formed the foundation of the
establishment of the professional standard that came to be adopted by English law.139 In
Bolam, Bolam voluntarily agreed to be treated, as a result of the treatment, he suffered from
injuries. Nonetheless, although he had consented to the treatment he claimed that (1) he was
not informed about the risks associated with the treatment undertaken (negligence in
information disclosure) and (2) he was not given the appropriate relaxation drug or
physically restrained (negligence in treatment).140 Based on the expert witnesses’ opinions
as to what should have been considered in Bolam’s course of treatment, there were different
views on how to proceed.
First, in terms of the alleged negligent treatment,141 expert witnesses agreed that there was a
respected body of medical opinion that was in opposition to the use of relaxation drugs and
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considered that less use of restraint would result in fewer injuries.142 McNair J gave his
assessment of the legal standard to be met as follows:
‘He [a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.’143
McNair J believed that doctors ‘…cannot obstinately and pig-headedly’144 apply an old
method to treat a patient ‘if it has been proved to be contrary to what is really substantially
the whole of informed medical opinion’.145 Therefore, for a doctor to say he would not use
anaesthetics, for example, and that he would still use discredited methods to treat ‘clearly
would be wrong’.146 Thus, it can be said that in terms of negligence in treatment by doctors,
the professional standard was applied, which places heavy reliance on expert medical
evidence about practice accepted as proper by the profession.
Second, in terms of warning of risks of treatment (the alleged negligence in information
disclosure), according to expert witnesses’ opinions in Bolam on behalf of the defendants,
the practice at that time was not to warn patients about the risks of a medical treatment if
doctors believed these were small, unless the patient asked.147 On the other hand, Bolam’s
expert witness claimed that ‘it would not be right not to warn a patient of the risks of the
treatment’.148 McNair J found the amount of information that was given to Bolam was in
accordance with an accepted responsible body of medical opinion at that time; therefore, the
doctor should not be considered negligent.149
In other words, it appeared that the same approach was taken toward alleged negligent
treatment and alleged negligence in disclosing information about risk. Since Bolam this
approach to establishing whether there has been a breach of the duty of care has been cited
in many different aspects of medical treatment case law.150 The applicability of Bolam
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became central to the important case of Sidaway v Bethlem Royal Hospital Governors.151
This case is of particular interest for the extensive discussion of the appropriate standard of
care and the variety of approaches taken by the judges.
The professional standard based on Sidaway Sidaway suffered from a trapped nerve and consented to an operation to be relieved of the
pain this caused. Unfortunately, as a result of the operation, she was left paralysed. Sidaway
raised an action claiming that her doctor had been negligent, both in terms of the conduct of
the treatment and, more importantly for this thesis, in that the doctor had not given her the
necessary information about the risks (less than 1 per cent risk of paraplegia) involved in the
surgery before she consented to it.152 In Sidaway, the court found that at the time of the
operation some, but not all, doctors would find it acceptable not to inform Sidaway about
the risks of paralysis.153 In reaching their decision that Sidaway’s action should fail, as she
could not prove that the doctor breached the duty of care, the Law Lords (in the House of
Lords)154 presented a variety of reasons to support their judgments. Kennedy commenting
on Sidaway that:
‘It is a fair summary to say that the House was divided three ways. Lord Scarman opted for a radical shift. Lord Diplock adopted a decidedly conservative view of the law. Lord Bridge, with whom Lord Keith concurred, and Lord Templeman chose what may be described as middle way, in what may be said to be the true tradition of the pragmatism of English law.’155
Adopting Kennedy’s observation, the importance of the Sidaway case depends on an
examination of their Lordships’ views regarding what standard should be applied to
determine legal liability for negligent information disclosure. His approach to the
categorisation of the strands of judgment is adopted below.
A decidedly conservative approach to the law (Unmodified Bolam) Miola wrote that Lord Diplock in Sidaway treated the issue in this case as a purely legal
matter, not an ethical one which involved consideration of respect for patient autonomy,156
since His Lordship stated that it was ‘…a naked question of legal principle.’157 Lord Diplock
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held that a doctor’s duty of care was inseparable into different aspects depending on the type
of conduct under consideration. Accordingly, it would be wrong to apply different standards
to different duties: it should be one standard for all doctors’ duties regarding their patients.158
His Lordship stated that:
‘In modern medicine and surgery such dissection of the various things a doctor had to do in the exercise of his whole duty of care owed to his patient is neither legally meaningful nor medically practicable.’159
Therefore, in terms of examining doctors’ liability in the provision of information about the
proposed treatment to patients, Lord Diplock strongly argued that the Bolam test was merely
a modern interpretation of the ancient rule of common law.160 Thus, His Lordship was
convinced that the Bolam test’s role was clear in ‘...laying down a principle of English law
that is comprehensive and applicable to every aspect of the duty of care owed by a doctor to
his patient in the exercise of his healing functions as respects that patient’.161 Lord Diplock
argued that ‘in matters of diagnosis and the carrying out of treatment the court is not tempted
to put itself in the surgeon’s shoes; it has to rely upon and evaluate expert evidence.’162
However, he also observed that it would not be enough for one school of thought in medical
practice to be against the doctor to establish liability,163 as he then set out the view that it
was not for the court ‘...to give effect to any preference it may have for one responsible body
of professional opinion over another, provided it is satisfied by the expert evidence that both
qualify as responsible bodies of medical opinion’.164 Furthermore, it seems that Lord
Diplock’s approach was far away from being based on patient self-determination165 as His
Lordship was clearly in favour of supporting doctors’ professional judgement about
disclosing information rather than supporting the patient’s right to information he would find
relevant to making a decision about treatment. This may therefore be seen as a doctor-centred
approach with a limited role for the court in evaluating the professional expertise and
integrity of the expert witnesses, not in judging the correctness of their conclusion on what
information should in fact have been disclosed. However, even on this approach a doctor
must apply ‘...diligence, care, knowledge, skill and caution...’166 to treat the patient. As
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Kennedy and Grubb stated, the duty imposed by law is to exercise reasonable care to treat,
diagnose and give information.167 However, for Lord Diplock, that duty is ‘…as [a] single
comprehensive duty covering all the ways in which a doctor is called upon to exercise his
skill and judgment’.168 Therefore, Lord Diplock dismissed the appeal, since applying a
professional practice standard in this way he concluded there had been no breach of this duty
and the patient had been sufficiently informed.169 I will argue that the formulation of the
Bolam test by Lord Diplock so as to assert that the professional standard is applicable to all
medical cases, including the failure to warn the patient about risk, is similar to the way the
duty to disclose is approached in Saudi Arabian medical law.
Middle way (Modified Bolam) Although Lords Bridge, Keith and Templeman raised a number of issues relating to patients’
need for information, they took the view that the duty of care should be based on what a
responsible professional would disclose (the professional standard), albeit that they
suggested some modification of this standard.
Both Lords Bridge (with whom Lord Keith agreed) held that the starting point was that the
Bolam test should be applied:
‘[A] particular treatment must primarily be a matter of clinical judgment. It would follow from this that the issue whether non-disclosure in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test.170
However, Lord Bridge seems to have adopted a modified Bolam test171 as His Lordship
proceeded on the basis of the patients’ right to receive information,172 although that should
be subject to ‘clinical judgement’ in disclosing medical information to a patient.173 Thus, in
the first place, whether a doctor has failed to disclose adequate information to the patient
relies on the judgement of a responsible body of medical opinion.174 Nonetheless, Lord
Bridge believed that the court should have the last word on what standard of care should be
set, as he noted that ‘I do not see that this [the Bolam] approach involves the necessity to
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hand over to the medical profession the entire question of the scope of the duty of
disclosure’.175 Importantly, His Lordship indicated that ‘...if there is a conflict of evidence
as to whether a responsible body of medical opinion approves of non-disclosure in a
particular case, the judge will have to resolve that conflict’.176 Based on Lord Bridge’s views
it appears that the court should play a role in judging expert evidence, which seems a
departure from Lord Diplock’s view, which sought to avoid this.177 Lord Bridge seems to go
further than this and recognises that the court may have the final say by declaring that the
doctor was negligent, even though there were doctors who would accept that the action of a
doctor to not disclose risks was defendable and proper.178 According to Lord Bridge’s view,
judges may be able to prefer one school of thought over another;179 consequently, the court
can decide whether a school of thought’s view is unreasonable.180 In Lord Bridge’s words:
‘But even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of the opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it.’181
Lord Bridge suggested that information that ought to be disclosed was that ‘…involving a
substantial risk of grave adverse consequences’.182 His Lordship then illustrated that risk by
giving the example of ‘…the ten per cent risk of a stroke from the operation’,183 which His
Lordship drew from the Canadian case of Reibl v Hughes.184 Lord Bridge averred that, in a
similar case, such a risk should be disclosed in the absence of a convincing reason ‘why the
patient should not be informed.’185 Furthermore, His Lordship insisted that ‘…a doctor,
recognising and respecting his patient’s right of decision, could hardly fail to appreciate the
necessity for an appropriate warning’.186 Nonetheless, with Lord Bridge’s example of a 10%
risk of stroke as a basis for deciding the significant risk of adverse consequences that no
prudent medical man would fail to disclose, it has been said that Lord Bridge’s view could
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provide the patient with ‘sufficient information’ to do so.198 The doctor should tell the patient
about the diagnosis and the recommended treatment and the doctor must do that in
accordance with his training and knowledge about what to say, which allows the patient to
make the final choice.199 Although Lord Templeman recognised that the patient should be
provided with ‘sufficient information’,200 His Lordship also seems to have considered the
notion of therapeutic privilege. In His Lordship’s words
‘the doctor impliedly contracts to provide information which is adequate to enable the patient to reach a balanced judgment, subject always to the doctor’s own obligation to say and do nothing which the doctor is satisfied will be harmful to the patient.’201
This however appears to be a restricted view of the application of therapeutic privilege, as
discussed earlier and the starting point is that the patient is entitled to decide for him/herself.
Lord Templeman also held that in order for the patient to make a ‘balanced judgment if he
chooses to do so, the patient needs to be aware of the general dangers and of any special
dangers in each case without exaggeration or concealment’.202 Notably here, Lord
Templeman attempted to distinguish between ‘general’ and ‘special’ risks of treatment. The
precise meaning of these terms is a matter of debate which will be considered later, but for
the moment what is important to note is that categorising a risk as either ‘general’ or ‘special’
had a bearing for Lord Templeman on the duty to disclose it. For general risks, if patients
have been made aware ‘that a major operation may entail serious consequences’, they cannot
complain about insufficient information disclosure.203 Further, in the case of general risks,
doctors should wait for patients to ask specifically for more information.204 For a special risk
Lord Templeman held that doctors should voluntarily inform patients if ‘...there is some
danger which by its nature or magnitude or for some other reason requires to be separately
taken into account by the patient in order to reach a balanced judgment in deciding whether
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His Lordship was ‘...satisfied that adequate information was made available to Mrs
Sidaway.’227
To sum up what has been discussed so far on the professional standard endorsed in Sidaway,
Lord Diplock was the only Law Lord who clearly considered the Bolam test to be applicable
with no restriction at all on applying it in either the performance of treatment or the context
of consent. As His Lordship asserted:
‘To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way.’228
Lords Bridge, Keith and Templeman had concerns regarding how the Bolam test should be
applied, as they felt that doctors should not be the only determiners of how much information
patients should be given, and accordingly suggested some modification of it.229 However,
Lord Templeman also seems to have given some scope for the use of therapeutic privilege
to allow doctors to withhold information when disclosing such information would harm the
patients.230 Indeed, Grubb observed that: ‘The need for a therapeutic privilege to withhold
information that might harm the patient is at the heart of the majority view in Sidaway that,
at least prima facie, Bolam should apply.’231 (His emphasis). However, the views of the
majority endorsed the Bolam test to a greater or lesser extent;232 and in so doing, the
professional standard. As will be discussed, this standard and how it should be interpreted
has formed the basis of the development of English law until comparatively recently.
The case of Sidaway, however, also highlighted an alternative approach to information
disclosure to the professional standard (with or without modification) in the judgment of
Lord Scarman: the prudent patient standard. This is the last of the three standards of
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The patient-centred stage (the prudent patient standard) It can be argued that Lord Scarman’s judgement in Sidaway was the first step in placing
more emphasis on patients’ wishes and respecting their rights and autonomy.
The prudent patient standard requires doctors to disclose information more closely in
accordance with patients’ need for information to arrive at a choice than the professional
standard. According to this approach, doctors must disclose relevant and material
information about treatment and its risks that reasonable patients233 would want to know in
order to make their decision to accept or refuse medical treatment.234 It is based on
considering the reasonable or prudent patients’ needs and wishes for information rather than
relying simply on doctors’ judgements about the benefits or risks of treatment. Accordingly,
doctors should assess the information that needs to be given to patients based on prudent
patient values.235 It has been argued that the prudent patient standard is a more appropriate
means of protecting patients’ interests and self-determination in decision-making than a
professional standard.236 This is because the disclosure of information is focused on patients’
needs, which gives them more weight in determining what is deemed to be appropriate
information disclosure.237 For Kennedy, this represents a radical shift in the direction of the
standard of care from that of the other Law Lords.238
Lord Scarman in Sidaway (a radical shift) Lord Scarman based his approach on the American case of Canterbury v Spence.239 In
Canterbury the court considered that the disclosure of risk is vital for patients to make their
own decisions about medical treatment, stating that:
‘[T]o bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves’.240
This statement in Canterbury shows not only the role of the law in setting the standard of
care, but also the court’s recognition of the importance of respecting patient self-
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‘[I]t would be a strange conclusion if the courts should be led to conclude that our law, which undoubtedly recognises a right in the patient to decide whether he will accept or reject the treatment proposed, should permit the doctors to determine whether and in what circumstances a duty arises requiring the doctor to warn his patient of the risks inherent in the treatment which he proposes.’252
Commentators such as Kennedy and Grubb and Miola observed that Lord Scarman also
specifically considered the principles of respect for autonomy and self-determination.253 His
Lordship argued that ‘…a doctor’s duty of care extends not only to the health and well-being
of his patient but also to a proper respect for his patient’s rights, the duty to warn can be seen
to be a part of the doctor’s duty of care’.254 Lord Scarman recognised that the doctors’ duty
of care requires them both to ‘advise’ and ‘provide’ patients with information that they need
as that would allow patients to ‘consider and balance the medical advantages and risks’ to
make their decisions.255
However, Lord Scarman also limited doctors’ duty to disclose information to that which
contains ‘material risk’.256 Following the approach in Canterbury, he set out the test of
material risk as follows:
‘The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach significance to the risk’.257 (Emphasis added).
Although Lord Scarman averred that material risks should be disclosed, His Lordship
narrowed the duty to disclose so that it did not require full disclosure even of material risks
in all circumstances.258 Lord Scarman recognised an ‘exception’ to allow a doctor to omit
some risks from his disclosure to a patient.259 His Lordship therefore seems to consider that
the prudent patient standard should be subject to therapeutic privilege, as he argued that:
‘...it is plainly right that a doctor may avoid liability for failure to warn of a material risk if he can show that he reasonably believed that communication to the patient of the existence of the risk would be detrimental to the health (including, of course, the mental health) of his patient.’260
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Sidaway and Montgomery have recognised that the patients’ questions must be answered
truthfully and fully.277 This will be considered in detail later in this Chapter.
Accordingly, it has been suggested that therapeutic privilege ‘...permits physicians to tailor
(and even withhold) information when, but only when, its disclosure would so upset a patient
that he or she could not rationally engage in a conversation about therapeutic options and
consequences’.278 The GMC guideline appears to have acknowledged this when in guidance
to doctors it stated that:
‘You [doctors] should not withhold information necessary for making decisions for any other reason, including when a relative, partner, friend or carer asks you to, unless you believe that giving it would cause the patient serious harm. In this context ‘serious harm’ means more than that the patient might become upset or decide to refuse treatment.’279
Thus, this narrow formulation in the GMC guideline does not allow doctors to adopt a
therapeutic privilege approach simply where it is feared that giving information would lead
patients to refuse the treatment in question. Withholding information should not affect the
ability of the patient to make an informed decision.280 In fact, the GMC guideline has been
very cautious about the use of the therapeutic privilege for withholding information, it
emphasised that: ‘If you [doctors] withhold information from the patient you must record
your reason for doing so in the patient’s medical records, and you must be prepared to
explain and justify your decision.’281
It is clear that the scope for applying therapeutic privilege to be used now is narrow and even
where it is applicable the GMC guideline advises that doctors ‘should regularly review
[their] decision, and consider whether [they] could give information to the patient later,
without causing them serious harm.’282 In conclusion, I would agree with Kennedy that Lord
Scarman’s view in Sidaway was a radical shift in the UK legal approach to the standard of
care in information disclosure since it focused on the issue of respect for patient autonomy
and self-determination.283 Although Lord Scarman’s view was in the minority and it was not
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taken up immediately by subsequent case law,284 it can be argued that it did become
influential in later cases, most significantly in the recent case of Montgomery. The scope for
the common law to change its approach was noted by Lord Scarman himself:
‘The common law is adaptable: it would not otherwise have survived over the centuries of its existence. The concept of negligence itself is a development of the law by the judges over the last hundred years or so....It would be irony indeed if a judicial development for which the opportunity was the presence in the law of a flexible remedy should result now in rigidly confining the law’s remedy to situations and relationships already ruled upon by the judges.’285
It is also worth mentioning that Teff stated at the time of the judgment in Sidaway that the
case ‘provides some basis for further development’.286 Since Sidaway was decided, the case
has not been explicitly overruled as a whole, but it has been interpreted in different ways.287
The development of English law since Sidaway will be considered in the next section.
4. The development of English law on information disclosure since Sidaway It is important to trace the development of the courts’ approach to information disclosure
from Sidaway to Montgomery in order to demonstrate how English law has moved towards
a prudent patient standard and the implications of that in protecting patient autonomy. In
doing so, it is also important to examine the extent to which English law has taken into
account ethical arguments regarding respect for patient autonomy. As pointed out earlier,
ethical principles may require more than the law can reasonably impose. The focus in what
follows will therefore be on the major legal cases that have considered the standard of care
for information disclosure and which consider the kinds of issues that will be seen to be
problematic in Saudi Arabia. Considering these issues will provide the basis for arguing how
Saudi Arabian medical law can learn some of English law experiences on these matters and
reform its own system to more adequately protect patient autonomy.
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4.1. After Sidaway a gradual change In some cases following Sidaway, it would seem that Lord Diplock’s view was supported.288
However, the application of his judgement was not always consistent289 and some movement
towards a more patient-centred approach can be detected.290
Lord Bridge’s ‘modified Bolam’ judgement in Sidaway was adopted in the case of Smith v
Tunbridge Wells HA291 where a claim was brought to the court stating that if the patient had
been warned of the risks of impotence inherent in a rectal operation, he would have not
consented to the surgery.292 Morland J acknowledged the ‘inherent ethical content in the
case…’.293 He quoted from a number of their Lordships’ speeches in Sidaway but made
particular reference to Lord Bridge’s approach.294
Based on Smith, there are two interesting issues. The first relates to the court’s role in judging
the evidence given by medical experts. The case succeeded, although there was a body of
competent medical opinion which accepted that in such a case a doctor need not have
informed the patient about that risk. That omission was, according to Morland J, ‘neither
reasonable nor responsible...’.295 Thus, the court held that the only reasonable action in the
case was to disclose the risk to the patient.296 Smith arguably, shows an example of a court
being prepared to decide that, even if it is in accordance with accepted medical practice,
failure to disclose information about risk can be deemed to have been negligent, because the
court believes that risk ought to have been disclosed.297
The second interesting issue in Smith was in respect of whether a doctor’s duty of care is
simply to provide relevant information or to ensure that patients understand it. Morland J
held that:
‘[T]he doctor, when warning of the risks, must take reasonable care to ensure that his explanation of the risks is intelligible to his particular patient. The doctor should use language, [that is] simple but not misleading, which the doctor
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perceives....will be understood by the patient so that the patient can make an informed decision as to whether or not to consent to the recommended surgery or treatment.’298
It has been suggested that this approach would place a huge burden on doctors to find out if
the patient has understood what he/she has been told.299 On the other hand, it has been said
that it is axiomatic that just providing the patient with information is not sufficient; the
patient must also be able to understand it and doctors must take this into consideration.300
Clearly, ensuring that the information that has been provided is in fact completely
understood is difficult.301 I would agree with McLean that although we assume that
understanding is vital for the legal validity of the patient’s decision, ‘it is less than clear how
we can either ensure it, or even identify its presence or absence.’302 Faden and Beauchamp
suggest that demonstrating that the patient has understood the provided information ‘may
ultimately depend both on the adequacy of the person’s understanding of disclosed
information and on the adequacy of the professional’s grasp of the person’s questions and
responses.’303 I would agree with McLean’s response that patient understanding and
professional skill in assessing this as endorsed by Faden and Beauchamp is ‘desirable’, but
that would be difficult to be translated into a legal principle, as assessing the authenticity of
the person’s understanding would not be ‘straightforward.’304
The duty to take reasonable care to ensure the patient has understood the information was
discussed further in AlHamwi v Johnston.305 This case drew a distinction between a legal
duty to take reasonable steps to seek to ensure that a patient has understood information and
a legal duty to take reasonable steps to seek to ensure that a patient can understand.
AlHamwi’s lawyer argued that the clinic’s duty of care included the duty to ensure that the
information that had been given to the patient was understood by her. The case was
dismissed, Simon J holding that doctors have no obligation to ensure that patients have
understood the information that has been given to them.306 In his view this would place a
heavy burden on them and ‘[i]t is difficult to see what steps could be devised to ensure that
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despite reasonable steps to avoid them.’316 This is a position which English law has now
appeared to recognise by endorsing the doctors’ legal duty to take reasonable steps to seek
to ensure that patients can understand the information provided, which was affirmed in the
subsequent case of Montgomery as I will discuss later on in this Chapter.
Despite the legal developments that have been discussed above, it can be said that these cases
were still considered within the framework of the professional standard, albeit with different
references to the various Law Lords’ views in Sidaway. However, a particularly significant
development in the proper interpretation of Bolam was the case of Bolitho v City and
Hackney Health Authority.317 The case was not concerned with information disclosure318 but
with an alleged negligent omission to treat.319 Nonetheless, although in the case itself it was
said not to be concerned with information disclosure, it has since been deemed to be
applicable to such cases.320 Bolitho was described as ‘a significant nail in Bolam’s coffin’.321
It has been argued that in Bolitho Lord Browne-Wilkinson made it clear that the courts are
to set what is to be considered reasonable care, not the medical profession.322 In Lord
Browne-Wilkinson’s words, in relation to where there is a difference of opinion of medical
expert witnesses as to whether the standard of care has been breached:
‘..the court is not bound to held that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant’s treatment or diagnosis accorded with sound medical practice’.323
Clearly, Lord Browne-Wilkinson’s argument is in favour of holding the courts’ role to be in
charge of critically analysing the medical experts’ opinions to verify both the credibility of
medical expert witnesses and whether their opinions are reasonable. This seems to take a
similar approach to that of Morland J in Smith discussed previously. Therefore, even where
there is a body of opinion by suitably qualified medical experts that what has been done is
in accordance with the accepted practice, the defendant doctor can be held to have been
negligent, as ‘…the court has to be satisfied that the exponents of the body of opinion relied
upon can demonstrate that such opinion has a logical basis’.324 For the court to override the
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views of expert witnesses that the approach adopted by the defendant was reasonable, it had
to consider the following:
‘In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.’325
The court, therefore, added a condition to the Bolam test by requiring that the opinion on the
defendant doctors’ action must be ‘capable of withstanding logical analysis’326 alongside the
doctors’ action ‘being in accordance with responsible medical opinion’.327 Furthermore,
according to the Bolitho amendment, the court may, after assessing whether the justification
of the defendant’s medical opinion is based on logical analysis, judge this opinion against
other expert views.328 Despite this, in Bolitho Lord Browne-Wilkinson recognised that it
would be difficult for the court to reach a judgment that what medical experts concluded was
acceptable practice was illogical. Thus, His Lordship emphasised that ‘in my view it will
very seldom be right for a judge to reach the conclusion that views genuinely held by a
competent medical expert are unreasonable’.329 He justified this view because to assess and
examine medical risks and benefits is ordinarily a matter of clinical judgement; therefore,
judges may not have the knowledge and ability to make a finding on this without expert
evidence. Therefore, ‘it is only where a judge can be satisfied that the body of expert opinion
cannot be logically supported at all that such opinion will not provide the benchmark by
reference to which the defendant’s conduct falls to be assessed’.330
The amendment to the Bolam test by Bolitho still acknowledges the importance of medical
expert evidence, as it is the primary basis for the court to make its judgment.331 However, it
has been argued that, in light of the Bolitho amendment, ‘it may no longer be sufficient for
practitioner’s actions to be Bolam-defensible. The court would seek to determine whether
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The effect of Bolitho can only be understood by examining the subsequent case law.333 The
application of Bolitho can be seen from two angles in relation to information disclosure; first
as a general matter, in the way medical expert’s opinion is judged (whether it is Bolitho
justifiable) and second the way that this duty has been seen to allow for a different approach
to the standard of care in information disclosure. The Bolitho modification came to be
applied to information disclosure as well as to diagnosis and treatment, where courts need to
determine whether the non-disclosure of risks that has been approved by a body of medical
opinion might nevertheless be considered as negligent.334 The scope for the courts to come
to a different view of what was appropriate from those of medical professionals became an
important matter to consider.
First, medical expert opinion: whether it is Bolitho justifiable
This significance of this issue can be seen in the case of Marriott v West Midlands RHA.335
Here, there were two conflicting bodies of medical opinion. Thus, the court had to make the
decision on the basis of whether the medical expert’s opinion had a logical support, (Bolitho
justifiable).336 The judge in the trial had held that, although there was a body of medical
expert opinion that supported the GP’s action to leave the patient at his home, it was not a
‘reasonably prudent course.’337 The decision was in favour of the patient and the decision
was upheld at the appeal.338
However, where there are a number of responsible and prudent courses of action, Lord
Scarman in Maynard v West Midlands RHA339 made the important point that:
‘….that a judge’s preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred...For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.’340
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responsible.349 Hence, Lord Browne-Wilkinson’s view in Bolitho is applicable in matters of
information disclosure.
Second, the discussion in Pearce supported Lord Bridge’s approach in Sidaway, as Lord
Woolf MR acknowledged that providing information might not only be a matter for
professional judgement.350 Lord Woolf MR’s referred to Lord Bridge’s suggestion
concerning the degree and severity of risk that ought to be disclosed, irrespective of the
existence of a body of medical opinion on behalf of the defendant.351 It will be remembered
that Lord Bridge had given the example of a 10% risk of stroke as being such a risk. Lord
Woolf MR formulated his view as follows:
‘If there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information in needed so that the patient can determine for him or herself as to what course he or she should adopt.’352 (Emphasis added).
However, it has been argued that Lord Woolf MR seemed ‘…to reject any reliance on
‘precise percentages’ and he re-interpreted Lord Bridge’s approach’.353 This argument seems
defensible, because His Lordship did not provide a clear explanation of what he meant by
‘significant risk’.354 His Lordship considered that when the doctor seeks to provide the
patient with information about risks the doctor ‘...has to take into account... the ability of the
patient to comprehend what he has to say to him or her.’355 Despite this, ‘where there is what
can realistically be called a significant risk’356 Lord Woolf MR held that ‘...in the ordinary
event,...the patient is entitled to be informed of that risk’.357 That risk must be one that a
‘reasonable patient’ would regard as relevant to make his or her decision.358
In applying his formulation of a relevant ‘significant risk’ to a ‘reasonable patient’, Lord
Woolf MR argued that the ‘very, very small additional risk of stillbirth [0.1% to 0.2%]’359
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important.’404 However, it should be noted that the concept of therapeutic privilege also
remains, as the court held that ‘[t]he only qualification [to not warn] is that there may be
wholly exceptional cases where objectively in the best interests of the patient the surgeon
may be excused from giving a warning.’405 Thus, as it was accepted in Pearce, there are some
exceptional circumstances that may justify doctors withholding information from patients,
although it would ultimately be for the court to decide whether the law should hold that the
information should have been provided.406
Due to the significance of Chester with regard to the change of the standard of information
disclosure and doctors’ duty to disclose risks by adopting the standard in Pearce I would
agree with Meyers’s conclusion that
‘it may be that Chester will prove to be more noteworthy for defining the scope of the doctor’s duty to warn his or her patient of the risks inherent or special in the treatment being proposed... No longer can the reasonable doctor standard of Bolam, as applied in the disclosure of risk context by Sidaway, be said to be the law.’407 (Emphasis added).
In fact, this recognition of the reasonable patient standard of care seems to be clearly held
and supported in the recent decision in Montgomery but before turning to that decision it is
worth considering two other significant cases: Birch v UCL Hospital408 and Jones v North
West SHA.409 In these cases, the issue of the doctors’ duty to inform the patient about
alternative available treatment(s) was considered. This approach is recognised by
Montgomery as the thesis will discuss in a moment.
Birch was the first English law case which discussed the doctor’s duty to provide the patient
with information regarding alternative treatments.410 Cranston J relied on both Pearce and
Chester in reaching his judgment, he recognised that: ‘If patients must be informed of
significant risks it is necessary to spell out what, in practice, that encompasses’.411 Cranston
J then asked ‘was it necessary for the defendant to go further and to inform Mrs Birch of
comparative risk, how this risk [of cerebral catheter angiography] compared with that
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should attract the duty to inform. It was further contended that she should have been given
advice about optional Caesarean section on the basis of Jones.438 It will be remembered that
Jones had held that patients should be given information about available alternative
treatment options and their comparative risks. The Inner House of the Court of Session on
the same basis as the Outer House refused the reclaiming motion and upheld the Lord
Ordinary’s decision.439 The case then went to the UK Supreme Court, where the Supreme
Court re-examined the application of the standard of care in respect of information
disclosure. It also dealt with the issue of causation (which will be discussed at the end of this
Chapter).
4.3.2. Sidaway set aside The decision by the Supreme Court was taken unanimously to allow the patient’s appeal.
Lords Kerr and Reed provided the leading judgments with which Lady Hale, Lords
Neuberger, Clarke, Wilson and Hodge agreed. Lady Hale also delivered a concurring
judgment.440
The Supreme Court in Montgomery was ‘invited to depart from the decision of the House of
Lords in Sidaway and to re-consider the duty of a doctor towards a patient in relation to
advice about treatment.’441 The Supreme Court stated that ‘...the analysis of the law by the
majority in Sidaway is unsatisfactory, in so far as it treated the doctor’s duty to advise her
patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject
to two qualifications of that general principle, neither of which is fundamentally consistent
with that test.’442 The Supreme Court held that:
‘It is unsurprising that courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar. There is no reason to perpetuate the application of the Bolam test in this context any longer.’443 (Original emphases)
Based on the previous discussion of the development of the English law standard of care, I
would argue that the Supreme Court’s decision is correct in its view that the decision in
Sidaway no longer represents the current approach in medical practice to patient centered
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treatment. It is also correct in deciding to depart from the professional standard of care
which, despite attempts in some cases to ameliorate its effects, failed to sufficiently respect
patient autonomy and self-determination as well as representing a paternalistic approach
which is no longer accepted in the medical context.444
McGrath has observed two reasons that led the Supreme Court to depart from the
professional standard derived from Sidaway; first ‘Sidaway had been misunderstood in
practice.’445 McGrath has argued that the Justices in the Supreme Court have re-read
Sidaway, thus the Supreme Court ‘took Lord Scarman’s opinion as the ratio, reading Lords
Bridge, Keith, and Templeman as joining him in placing the patient first.’446 Based on that,
the Supreme Court stated that the decision in Pearce correctly interpreted Lord Bridge’s
view in Sidaway.447 A substantial risk which it is necessary for the patient to know in order
to make an informed choice should be disclosed.448 The second reason McGrath observed
for the Supreme Court to depart from the professional standard in Sidaway is that, ‘the
paternalistic model of the doctor–patient relationship on which it was based had ceased to
reflect reality.’449 As the Supreme Court noted, since the decision in Sidaway was taken,
there has been an obvious shift towards more recognition of the importance of respect for
patients’ autonomy and the value of their self-determination.450 Therefore, it can be argued
that the decision of the Supreme Court has effectively overruled Sidaway, though it did not
expressly do so, and pronounced a new standard of care for the UK that more properly
respects patient autonomy. This will be considered further below.
4.3.3. The prudent patient standard of care as the current approach to information disclosure in England By allowing the appeal in Montgomery, the Supreme Court has now clearly accepted the
patient prudent test into the law of consent in the UK.451 The Supreme Court reached its
decision on the matter by placing more emphasis on respect for patient self-determination
and rights. As it was said, ‘...patients are now widely regarded as persons holding rights,
rather than as the passive recipients of the care of the medical profession.’452 This shows that
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the Supreme Court has departed from the approach of professional practice in setting an
appropriate standard of care with its overtones of paternalism and considered the ethical
issues of respecting and protecting patients’ autonomy in the medical care context as taking
priority.453 The Supreme Court’s position shows, as Farrell and Brazier have observed, that
the era of accepting that doctors know best about what information should be given to the
patient is ended.454 The Supreme Court recognised that this is in part because now it easier
for the patient to gain medical information from a different variety of sources such as the
internet, medicine labelling and so forth. Hence:
‘It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation.....To make it the default assumption on which the law is to be based is now manifestly untenable.’455
This view advances the idea of not seeing the patients just as passive recipients of the
information that doctors give to them. Instead the new understanding of medical practice
and law is to recognise the idea of dealing with patients ‘...so far as possible as adults who
are capable of understanding that medical treatment is uncertain of success and may involve
risks, accepting responsibility for the taking of risks affecting their own lives, and living
with the consequences of their choices.’456
Interestingly, what followed from that is that the Supreme Court confirmed that the patient
can decide whether she wants to receive information about the risk or not, so if the patient
has made that clear to the doctor, then there is no obligation on the doctor to discuss the
risk.457 However, it was cautioned that the matter of ‘[d]eciding whether a person is so
disinclined may involve the doctor making a judgment; but it is not a judgment which is
dependent on medical expertise.’458 Here too, the doctor’s obligation in deciding whether to
discuss with the patient the risk or not is a matter of respecting patient autonomy and in the
final analysis this would fall to be determined by the courts not the medical profession.459 It
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remains the case, as the Supreme Court has affirmed, that: ‘An adult person of sound mind
is entitled to decide which, if any, of the available forms of treatment to undergo, and her
consent must be obtained before treatment interfering with her bodily integrity is
undertaken.’460
Based on these considerations and the recognition by the Supreme Court of the importance
of respecting patient rights and autonomy, the Supreme Court outlined the appropriate
standard of care as follows:
‘The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.’461 (Emphasis added).
The question arises as to whether this is in fact simply a prudent patient test or whether it
has gone some way toward a more subjective patient test. Noticeably, the Supreme Court
has referred to testing the risks’ materiality against whether ‘the particular patient would be
likely to attach significance to it.’462 Heywood argues that the Supreme Court’s reference to
the decision of the Australian High Court in Rogers v Whitaker,463 has introduced the Rogers
approach into English law in Montgomery.464 In Heywood’s words, ‘[t]he test of materiality
is no longer restricted just to what the reasonable person in the patient’s position would
consider significant.’465 It will be remembered that Lord Scarman in Sidaway had adopted
the Canterbury test:
‘The test of materiality is whether in the circumstances of the particular case the court is satisfied that a reasonable person in the patient’s position would be likely to attach significance to the risk.’466 (Emphasis added).
Instead the Supreme Court has stated that a material risk
‘..is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’467 (Emphasis added).
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facilitate discussion, to send information to the patient in advance.’486 Further, the guidelines
explain that: ‘In practice, this means that surgeons should provide information about:…
Alternative options for treatment, including non-operative care and no treatment…. The
material risks inherent in the procedure and in the alternative options discussed..’487
It should be remembered that courts have the final say on how to discharge doctors from
their duties. Thus I would agree with Heywood that it will be ‘fascinating...to see in the
future whether or not litigation converges on this aspect of the duty and, if so, the parameters
that judges will place on it in order to limit the legal exposure of doctors.’488
The test outlined in Montgomery interestingly retains something of the therapeutic
exception, since it retained the possibility of allowing the doctor to withhold information in
some, albeit rare, circumstances where disclosure would be ‘...seriously detrimental to the
patient’s health.’489 The Supreme Court, however, clearly asserted that the ‘therapeutic
exception should not be abused.’490 It has stated:
‘It is a limited exception to the general principle that the patient should make the decision whether to undergo a proposed course of treatment: it is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.’491
Accordingly, the therapeutic exception should not be used in a way that unjustifiably
interferes with patient autonomy, such as where the doctor simply fears that the patient will
make an unwise choice. The Supreme Court dismissed the doctor’s submission in
Montgomery that she chose to ‘withhold information about the risk of shoulder dystocia from
her patients because they would otherwise request caesarean sections.’492 The Supreme
Court has responded that ‘the therapeutic exception is not intended to enable doctors to
prevent their patients from taking an informed decision.’493 Therefore, ‘…it is the doctor’s
responsibility to explain to her patient why she considers that one of the available treatment
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The above recognition by the Supreme Court of the need for doctors to seek to ensure that
patients can understand the provided information is vital. This point is reiterated in the RCS
guidelines which state:
‘Surgeons must be satisfied that their patient has received and understood sufficient information about their diagnosis – as well as the proposed treatment and its implications – to allow them to make a decision they deem to be in line with their own values and wishes. Different options for treatment, including the option of no treatment, should be presented side by side and the benefits and material risks should be given objectively.’506
Despite the Supreme Court’s emphasis on the issue of understanding and the importance of
communicating with the patient, Heywood has argued that ‘the judgment stopped short of
providing examples of precisely what a doctor will be expected to do in order to discharge
her duty in this regard.’507 Heywood has expressed concern because the concept of
‘understanding’ is ‘fluid’ and it would be naturally different among patients.508 Thus, for
Heywood
‘...this is surely the most curious and equivocal segment of the doctor’s duty. It is difficult for a doctor to gauge a patient’s understanding and equally challenging for a judge to articulate what reasonable steps have to be taken to ensure that there has been at least some attempt by the clinician to ascertain the level of patient comprehension.’509
I would agree with Heywood’s conclusion that the clarification of what approach doctors
should take to explain and communicate risk to the patient will rely on how the decision in
Montgomery is interpreted in subsequent case law.510
What the judgment does seem to do is to move the law’s position closer to that outlined in
the GMC guideline ‘Consent: Patients and Doctors Making Decisions Together’ which has
advised doctors to:
‘…check whether the patient needs any additional support to understand information, to communicate their wishes, or to make a decision. You should bear in mind that some barriers to understanding and communication may not be obvious; for example, a patient may have unspoken anxieties, or may be affected by pain or other underlying problems. You must make sure, wherever practical, that arrangements are made to give the patient any necessary support. This might include, for example: using an advocate or interpreter; asking those close to the patient about the patient’s
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another area where legal principles have made it difficult for patients to succeed in
information disclosure cases. As the thesis focuses on the standard of care in information
disclosure, the topic of causation will be addressed briefly, but with specific consideration
of the issue of establishing causation in terms of information disclosure.
C. Causation Kennedy and Grubb stated that ‘causation is the legal concept by which the defendant is held
responsible for his conduct, which in this context means his negligence’.515 The role of
causation is to show the material connection between the defendants’ negligent action (or,
more rarely, inaction) and the claimants’ damage.516
Factual causation is the idea that the claimant must show a historical connection between the
negligent action of the defendant and the injury or damage that happened.517 The tool to
establish that connection of causation is through the ‘but for’ test.518 The ‘but for’ test was
described by Lord Denning as follows:
‘[C]ausation is, I think, a question of fact. If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage.’519
The ‘but for’ test in action can be seen in the case of Barnett v Chelsea and Kensington
Hospital Management Committee.520 Here three men in a hospital emergency department
were asked to leave the hospital and see their own doctors by a nurse who received that
instruction via a phone call from the doctor on duty. Barnett died later of arsenic poisoning
and his widow sued the hospital for negligence.521
The court held that neither hospital nor doctor were liable for the death. There had been no
breach of the duty of care since even if the patient had been admitted to hospital there was
no effective treatment and the claimant’s husband would still have died.522 Hence, if the
injury or damage would have happened regardless of the defendant’s negligence, negligence
is not ‘causative of the claimant’s loss’.523 Based on the ‘but for’ test, in the case where the
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‘there were weighty arguments for the defendant...as to why the defendant’s version of events should have been preferred; alternatively, that... [the patient] would have been likely to proceed with the operation whatever warnings she received from the defendant. However, in the event, the recorder preferred the recollection of... [the patient] and accepted her evidence as to whether she would have proceeded is she had been fully and properly advised of the attendant risks. Those were essentially findings of fact based on the recorder’s assessment of the witnesses, of a kind with which this court will only interfere in rare cases.’542
Despite the success for the patient in this case, it has been argued that in addition to the
problems with establishing breach of the duty of care, ‘...until the judgment in Chester v
Afshar, causation also remained a very significant obstacle to patient success’.543 (Her
emphasis). However, in Chester the court has relaxed the test of causation in an effort to
give more respect for patient autonomy.544 As I have stated above, Chester is an important
decision for both the development of the standard of information disclosure which has been
discussed and for the issue of causation. In Chester, Chester was claiming that ‘if she had
been told of the risks as she now knew them to be she would not have had the operation...’.545
Notably, Chester did not argue that she would not ever have consented to such an operation,
but only that she would not have consented immediately to the operation until she had ‘...at
least two further opinions as to whether an operation was necessary’.546 In Chester the
majority of the Lordships (Lords Hope, Steyn and Walker) were in favour of Chester on
causation as she lost the chance to have the operation on another day when it was suggested
that, due to the low risk, it was unlikely she would have suffered paralysis.547 In terms of the
test of causation, the majority of the Law Lords held that it is not necessary for the patient
to prove she would never have consented to the operation for the rest for her life if she had
been properly informed.548 Lord Hope stated that:
‘The function of law is to protect the patient right’s to choose. If it is to fulfil that function it must ensure that the duty to inform is respected by the doctor. It will fail to do this if an appropriate remedy cannot be given if the duty is breached and the very risk that patient should have been told about occurs and she suffers injury.’549
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This approach can be understood to respect patients’ self-determination as Lord Hope in the
House of Lords cited with approval the decision of the Court of Appeal:
‘The object is to enable the patient to decide whether or not to run the risks of having that operation at that time. If the doctor’s failure to take that care results in her consenting to an operation to which she would not otherwise have given her consent, the purpose of that rule would be thwarted if he were not to be held responsible when the very risk about which he failed to warn her materialises and causes her an injury which she would not have suffered then and there.’550
The majority in the House of Lords in Chester can be said to have agreed to give ‘proper
legal force to patients’ right to autonomy and dignity’.551 Lord Steyn justified making what
he referred to as ‘a narrow and modest departure from traditional causation principles.’552
The doctor has a duty to inform and failure to do so would result in negligence which should
be compensated, even where there might have been considered to be difficulties in
establishing causation.553 Therefore, Chester in relation to causation can be suggested to
focus on the notion that the patient should be warned about risks as otherwise she would not
have been given the opportunity to weigh the risks to make her choice.554 As Lord Hope
argued: ‘For some [patients] the choice may be easy—simply to agree to or to decline the
operation. But for many the choice will be a difficult one, requiring time to think, to take
advice and to weigh up the alternatives’.555 Therefore, ‘[t]he duty is owed as much to the
patient who, if warned, would find the decision difficult as to the patient who would find it
simple and could give a clear answer to the doctor one way or the other immediately’.556
Although both Lords Bingham and Hoffman recognised the important of the patient’s right
to be informed, they dissented from this approach to causation. Instead they opted for the
conventional principle of causation provided by the ‘but for’ test, saying that the patient had
failed it, because the stated time of performing the operation did not affect the risk of her
injury.557 It has been argued that there would be a difficulty if a patient was asked to establish
that ‘she would not have consented to have this particular treatment at this time if she had
been properly informed, but cannot prove that she would never have undergone the
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came to the conclusion that, even if Montgomery had been given full advice about the risks
of the shoulder dystocia, she would not have selected the alternative of a Caesarean section.
That conclusion was approved by the Inner House of the Court of Session.565 Nevertheless,
the Scottish courts’ conclusion regarding causation contained two errors, as the Supreme
Court has observed. First, the courts focussed on the very small risk of a severe result of the
shoulder dystocia (‘1/500 approximately for a brachial plexus injury and of that 1/500
approximately 1–2% of those would suffer cerebral palsy.’),566 instead of the significant
risks of shoulder dystocia itself (9% to 10%).567 Second, the courts excluded a vital piece of
evidence which was submitted by Dr McLellan herself, when she explained that she did not
warn about shoulder dystocia, because based on her view that ‘most women will actually
say, ‘I’d rather have a caesarean section.’568 She then explained that if she mentioned such
risks to diabetic patients, most of the women would opt for a Caesarean section, which in
her view was ‘...not in the maternal interests..’ for them.569 The Supreme Court concluded
that had Dr McLellan
‘...advised Mrs Montgomery of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, Mrs Montgomery would probably have elected to be delivered of her baby by caesarean section. It is not in dispute that the baby would then have been born unharmed.’570
The evidence thus has appeared to show that even the defender believed that giving such
information was likely to change the patient’s mind about treatment and accordingly the
Supreme Court held that the causation point was established in the patient’s favour.571 It
should also be noted that Dr McLellan’s view is reminiscent of the now discredited approach
that it is appropriate to withhold information if it is believed that this is in the patient’s best
medical interests. This paternalistic approach is no longer accepted, save for rare cases where
therapeutic exception can be invoked. It can be argued that the element of causation in
Montgomery was straightforward. Therefore,‘[a]s such causation was satisfied in the
ordinary fashion, discussion of Chester v Afshar was unnecessary.’572 (Original emphasis)
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It is clear that when the law considers consent under battery it is to protect patients’ bodily
integrity from unwanted touching579 and a legally valid consent requires the patient to be
competent and free from undue influence or coercion.580 It also requires a certain amount of
information disclosure. However, once consent based on a broad understanding of the nature
of the treatment has been obtained, any failure in provision of adequate information is dealt
with by the civil tort of negligence. Adequate information disclosure is undoubtedly required
by the law but the precise scope of information to be disclosed has undergone changes
culminating in the case of Montgomery.581
The increased emphasis on respect for patient autonomy discussed in Chapter one has also
been seen in the development of English law to acknowledge this principle, as can be seen
most strongly in Montgomery, with its formulation of the prudent patient standard of care in
actions for negligence based on inadequate information disclosure.582 In Lady Hale’s words
in this case:
‘It is now well recognised that the interest which the law of negligence protects is a person’s interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body...’583
Therefore, for Lady Hale the patient is entitled to make her decision freely and that decision
must be respected as long as the patient is ‘a competent adult’ and the patient is ‘entitled to
the information which will enable her to take a proper part in that decision.’584
The acknowledgment of the need for the law to protect patient autonomy in the earlier cases
of Chester and Pearce has been described by Hoppe and Miola as ‘stark.’585 That has led
them to express their strong belief that, in less than twenty years, English law has moved
from Lord Diplock’s view to purely applying the Bolam test where there is no mention of
respect for patient autonomy, through Lord Bridge’s modified view, then more recently to
the protection of patient autonomy in much the way that Lord Scarman in Sidaway
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I would agree with Miola’s observation that English judicial view on the standard of care
has been gradually changed as follows:
‘The judicial attitude gradually changed, and the focus of the law shifted from doctors to patients. The legal test for what a doctor must tell a patient…moved… to what the reasonable doctor would inform a patient subject to judicial control, [Smith v Tunbridge Wells HA] and then to what the reasonable patient would want to be told [Pearce v United Bristol Healthcare NHS Trust]. This provided limits to the use of medical conscience, as the law came to prioritise what the patient wanted rather than what the doctor thought best for the patient. But the courts have gone further, and the law now openly and explicitly looks only at patient autonomy. Indeed, the Supreme Court has recently delivered a judgment that cements this view in Montgomery v Lanarkshire Health Board.’587 (Original emphasis).
However, English law still acknowledges the therapeutic privilege concept,588 so as to allow
doctors in some exceptional circumstances to withhold information from their patients,
based on their medical judgement.589 Nevertheless, the scope for this has become very
limited.590
In Chapter one, this thesis discussed the Western ethical views on the principle of respect
for autonomy and trust in a medical context. It was proposed that patients should be provided
with sufficient and understandable information to be self-determining. For the reasons I have
stated throughout this Chapter modern English law (the prudent patient standard) seems to
be able to satisfy the thesis’s proposed ethical standard. There do remain issues to be resolved
such as the issue of what is meant by informing the patient about a reasonable alternative
treatment and how doctors should fulfil their duties to seek to ensure that the patient can
understand the information. Clarification of these remaining questions will doubtless emerge
from future case law.
The next Chapter will examine the Saudi Arabian current professional standard of care in
order to make recommendations for reform. Therefore, in the following Chapter, the thesis
will move its focus to consider the same issues as discussed in this Chapter but based on the
Islamic Sharia and Saudi Arabian laws. Then, in the Concluding Chapter, the thesis will
present the lesson that can be learnt from English law experience based on the conclusions
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leave, is not lawful’.21 If this protection is given to people’s homes then it is considered that
an individual’s rights to privacy and bodily integrity are even more valuable and to be
protected, since the holy Quran in translation describes the human body as follows: ‘We
[Allah] have indeed created man in the best shape.’22 Islamic Sharia has recognised the
protection of the sanctity of human life and respect for the human body, as the Messenger
PBUH declared in the holy place of Makkah23 during his pilgrimage: ‘verily your blood,
your property are as sacred and inviolable as the sacredness of this day of yours, in this
month of yours, in this town of yours’.24
It is therefore clear that the human body and life are sacred and to be protected from any
violence or other action that threatens them.25 It follows that each individual must be
protected from any unwanted touching – reckless, well meaning or malicious. It is a breach
of bodily integrity if one deals with a person’s body without a person giving permission or
consent in a way that is in accordance with Islamic Sharia teachings.26
Muslims are encouraged to preserve, promote and enjoy their lives in a good way; the holy
Quran in translation states:
‘But seek, with that (wealth) which Allah has bestowed on you, the home of the Hereafter, and forget not your portion of legal enjoyment in this world, and do good as Allah has been good to you, and seek not mischief in the land. Verily, Allah likes not the Mufsidun (those who commit great crimes and sins, oppressors, tyrants, mischief-makers, corrupters).’27
Therefore, based on what has been said, it can be argued that first, an individual is in control
of his/her own body, and second, that body may not be violated by any means unless the
person has consented to something that benefits him/her or prevents severe harm or death
and is not against Islamic Sharia principles. There have been some references to the law of
patients’ consent to or refusal of medical treatment in Islamic Sharia traditions, perhaps not
to a degree that would satisfy the current formulation of consent laws, but advanced concepts
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for their time. There was a specific reference that bears directly upon consent to treatment
in one of Islamic Sharia’s primary sources, Sunnah, when the Messenger PBUH was ill28
and in need of treatment, as those who were surrounding him PBUH thought. His wife
Aisha29 told the story:
‘We poured medicine30 into the mouth of Allah’s Messenger during his illness, and he pointed out to us intending to say, ‘Do not pour medicine into my mouth.’ We thought that his refusal was out of the aversion a patient usually has for medicine. When he improved and felt a bit better, he said (to us.) ‘Did not I forbid you to pour medicine into my mouth?’ We said, ‘we thought (you did so) because of the aversion, one usually has for medicine.’ Allah’s Messenger said, ‘There is none of you but will be forced to drink [the same] medicine, and I will watch you, except Al-‘Abbas [his uncle], for he did not witness this act of yours.’31
From this prophetic statement, Muslim scholars have elicited some legal principles in
relation to patients’ consent to or refusal of medical treatment.
First, this prophetic statement by the Messenger PBUH has been believed to be the
foundation of the Islamic Sharia law of consent to or refusal of medical treatment.32
Therefore, a competent adult patient is the only person legally entitled to consent to or refuse
medical treatment. This principle has been recognised by the GPSRI, LPHP2005 and
CEHP2013, as will be discussed in this Chapter.
Second, Muslim scholars from the prophetic statement above have agreed that it is not
normally permitted to consent to or refuse treatment on behalf of competent adult patients.33
There are some limited exceptions, for example, in an emergency where it is difficult and
impractical to obtain or wait for consent and the treatment is required to save patients’ lives
or prevent them from severe harm or damage to their health, based on the Islamic Sharia
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Thus, from what has been discussed, it can be argued that Islamic Sharia jurisprudence has
recognised the need to respect patients’ autonomous decisions as a legal principle in relation
to healthcare. Thus, consent to medical treatment in a basic form was considered to be a
legal requirement many centuries ago by Islamic Sharia.48 Having explained the basis of the
legal principle, I will now turn to how that principle came to be enacted in modern times in
regulation directed at medical professionals.
2.2. The development of consent law in Saudi Arabian medical laws Saudi Arabian medical law has developed rapidly, especially in the last three decades, with
increased attention being paid to health sectors.49 Any Saudi Arabian regulations should be
based on Islamic Sharia, should be interpreted in accordance with it and must not conflict
with it.50 I have explained elsewhere51 that, from the beginning of the 1910s to the middle
of 1920s, Arabic traditional medicine prevailed and there was no statutory regulation of
hospitals or clinics or medical professions until the License to Practice Medicine and
Pharmacy 1928 addressed this.52 However, this Act did not address the issue of consent law
and as a result of poor and unclear medical regulations, guidelines, and instructions, medical
staff found themselves in a situation where they had to try to follow and apply Islamic Sharia
law and Saudi Arabian traditions and customs and be sensitive to public attitudes in relation
to the practice of medicine.53
It has been explained that Islamic Sharia does contain reference to legal principles
concerning consent to treatment. However, those principles need to be formed in a very clear
code of law to be applied consistently in practice. As the thesis has also explained, the Saudi
Arabian legal system has not considered precedent as a form of legal development.54
However, until the beginning of the 1970s the Mufti was both the Head of Saudi scholars
and also of Saudi judges.55 The views of the Mufti before that time can be considered as
amounting to statements of legal principle because of his dual power.56 It can therefore be
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consent instead of her consent or if the decision should only be made by the woman herself.63
Abu-Aisha has argued that until the middle of the 1980s in Saudi Arabia:
‘There (was) a general misconception amongst the medical professional that a mature mentally sound woman (had) no right to give consent for medical procedures necessary for her in Saudi Arabia. Usually when invasive medical procedures (were) necessary for the management of diseases affecting a woman, a male guardian (was) sought to sign the consent form.’64
The author suggests that there was a misunderstanding and misrepresentation among medical
staff who, generally, did not accept the idea of adult competent women’s rights to consent to
medical treatment which seems, in some cases at least, to have been based on the view that
there was no clear legal principle to support that. Hence, as a result of the prevailing
confusion and disputes regarding the requirements for both male and female patients’
consent, the Minister of Health (MoH) in 198365 submitted the legal question to the King’s
office in order for the GPSRI66 to study the matter based on Islamic Sharia’s sources. The
GRPSI was asked to establish a legal principle regarding competent adult male or female
patient consent in relation the issue that ‘...doctors face when patients or those in charge of
them refuse to have certain surgeries performed on them and the consequences of that.’67 The
GPSRI had to set a legal principle; so, it considered the legal question as follows:
‘The Council, having studied the matter through consultation and exchange of opinions, unanimously decided that it is not permissible to operate on patients without their permission provided that the patient is pubescent [adult] and sane [competent], whether this patient is a male or a female. If the patient is not of age [not adult] or insane [incompetent], then the permission of his/her…guardian must be obtained.’68
As has been mentioned in Chapter two, although GPSRI is not a regular part of the Saudi
Arabian legislative bodies, it is always involved in medical issues such as this one about
patients’ consent. This GPSRI declaration established the legal principle for obtaining a
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patient’s consent, which was adopted in 1984 by the MoH as the legal approach to obtain
consent to treatment.69
The GPSRI declaration has therefore been legally binding since that time70 and this approach
is now a part of LPHP2005 and CEHP2013. LPHP2005 has declared that ‘[n]o medical
intervention may be performed except with the consent of the patient, his representative or
guardian if the patient is legally incompetent.’71 LPHP2005 has recognised as an exception
to the general legal requirement for obtaining a patient’s consent
‘…in cases of accidents, emergencies or critical cases requiring immediate or urgent medical intervention to save the patient’s life or an organ thereof or to avert severe damage that might result from delay, where the timely consent of the patient, his representative or guardian is unattainable.’72
In those cases, doctors should intervene immediately and there is no need to obtain consent.
Further, doctors in such cases are not allowed by the law to decline intervening or treating.73
CEHP2013 in terms of recognising patients’ rights to consent has considered the issue in
more detail and contains additional requirements that LPHP2005 did not mention.
CEHP2013 has stated that:
‘The adult conscious patient’s permission (consent) should be sought (whether the patient is male or female), or from his/her representative in case the patient is not competent to decide, before any medical or surgical intervention.’74
Moreover, CEHP2013 has indicated that the consent must be in written form, if the medical
procedure ‘...includes possible risks, like surgical operations, biopsy, or similar procedure’.75
It is important to remember that CEHP2013 is not only an ethical guideline, but is also
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In terms of respecting patients’ choices, LPHP2005 has placed legal duties on doctors to
respect patients’ choices.77 However, it has included some limitations on patients’ rights to
choose, since choices should be respected only as long as they are not in conflict with either
Islamic Sharia or Saudi Arabian laws.78 CEHP2013 has also recognised patients’ right to
consent,79 but it has said nothing about respect for their choices. However, as LPHP2005
has superior legal status to CEHP2013, it can be said that the same limitations to patients’
choices are applicable. Therefore, in terms of respecting patients’ consent and choices, it is
clear that the Saudi Arabian medical regulations have to some extent already adopted a legal
standard based on Islamic Sharia’s religious and ethical principles, which were explored in
the Chapter two.
It should also be noted that, nonetheless, neither LPHP2005 or CEHP2013 mention that
doctors should not exceed the patient’s consent by performing other treatment that is beyond
what the patient has consented to, or whether the patient can withdraw his/her consent
(saving the case of Wajib treatment). Muslim scholars agree that doctors should not exceed
the limit of consent except under the principle of necessity, and that the patient can withdraw
his/her consent.80 This view is applicable in Saudi Arabian medical law because, if there is
no reference in Saudi Arabian written law to a matter, Islamic Sharia general principles are
applicable. This view by Islamic Sharia is similar to the English law view discussed in
Chapter three. However, I would argue that such issues should be addressed by LPHP2005
to give more protection to patient consent and autonomy. As this thesis is limited to the issue
of information disclosure standard, it will not further discuss these issues.
Having set out the legal principles of consent law in Saudi Arabia, what follows will discuss
the protection of patients based on criminal and civil laws.
3. Legal consequences of proceeding without a competent adult patient’s consent Consent to or refusal of medical treatment is fundamental to the law regulating medical
treatment and doctors’ professional conduct in Saudi Arabia.81 Muslim scholars have
appreciated the need for consent as its existence not only protects competent adult patients
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A form of mistake is regarding the doctor’s qualification and licence, so if the patient thought
that the doctor who will treat him/her is qualified and licensed but he/she is not, then his/her
consent to treatment is not legally valid, because LPHP2005 banned the practice of medicine
for those who are unqualified or unlicensed or both.143 LPHP2005 further has put a legal
duty on doctors and forbids them to ‘...employ unlicensed healthcare professionals or
provide assistance to any person illegally practicing a healthcare profession...’144 Therefore,
if the patient consents because he/she mistakenly thought that the doctor still holds a valid
qualification or licence, that consent is vitiated and invalid and the doctor should be held
liable both criminally and civilly.145 On the other hand, if the patient knows that the doctor
is unqualified or unlicensed, but nonetheless he/she consented, the patient’s consent can be
regarded as a valid consent; consequently, the doctor should not be held civilly liable, as
he/she did not deceive the patient about his/her current qualification or licensing.146 The
views of Islamic Sharia and Saudi Arabian law consider the patient’s consent as a defence
to civil action if the patient consented knowing that the doctor was unlicensed or unqualified,
although the doctor may still be subject to disciplinary liability for unlawful conduct.147
To conclude the discussion of this element of consent, it can be said that voluntary consent
must be free from coercion, abuse and mistake. Although the legal systems of England and
Saudi Arabia derive from different backgrounds, they do share much common ground.
The last element of a valid consent is of course the one of greatest significance to this thesis
so it will be discussed below in depth.
C. Adequate information disclosure (AlTabsser) The element of a decision being based on sufficient information to a valid consent is
obviously important.
C.1. Information disclosure and the current practice under Saudi Arabian medical law The main issue of this thesis is to investigate the current practice regarding the standard of
care in information disclosure in respect of medical treatment in Saudi Arabia. In addition,
it is to argue that this is inadequate in terms of protecting patient autonomy, in terms of gaps
in the current law and the adequacy of the standard of care. It is therefore necessary to
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C.3. Information disclosure in current Saudi Arabian medical law I would argue that there is a single article in LPHP2005 that considers the issue of providing
patients with information, warning them about risks, the issue of therapeutic privilege and
patients’ right to not be informed or to waive that right. However, there are several
statements by CEHP2013 in relation to information disclosure which I will consider.
In the beginning, I would argue that the duty of doctors to provide patients with health
services in general and information disclosure specifically can be understood to be based on
the professional standard (prudent doctor standard). LPHP2005 in article 26 has declared
that:
‘A healthcare professional governed by this Law [LPHP2005] shall exert due care in line with commonly established professional standards’.157 (Emphasis added).
This application is arguably based on the views of Muslim scholars that have set the basic
principle of doctors’ potential liability as being that a doctor should not be liable for
negligence if he/she has acted in accordance with the reasonable practice of a reasonable
medical body of opinion in his/her craft.158 This view seems similar to what has been
discussed in Chapter three, regarding the overruled English law standard of care called the
Bolam test, which stated that:
‘He [a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’159
Thus, it would appear under this view that in Saudi Arabia a doctor should not be held liable
where some doctors would not agree with the approach that he/she applied to treat the
patient, as long as the approach is accepted by a body of medical opinion in the craft of
medicine.160
However, as there is no direct reference to the standard of care in medical treatment in the
main sources of Islamic Sharia, it is then left to Muslim scholars to search for and set one.
Thus, some scholars have established the principle of a professional standard based on their
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understanding and interpretation of the holy Quran, which considers in general that if
someone is not knowledgeable about a specific skill, he must ask the expert in that field who
possess the experience and the qualification to demonstrate what is the proper and acceptable
practice.161 Another foundation of the professional standard is based on one of the Islamic
Sharia legal principles which declared that ‘[c]ustom is of force’,162 which means that in any
argument about the standard of crafts or skills or knowledge, the way to verify that argument
is by applying the acceptable custom or method to investigate the case.
I would argue that this view does not mean that there is no room in Islamic Sharia and Saudi
Arabian medical law to change the standard of care. As I have argued in Chapter two, Islamic
Sharia and Saudi Arabian medical ethics have acknowledged respect for patient autonomy
in their accordance. Thus, the thesis’s argument is to say that both the professional standard
and the prudent patient standard can be founded in Islamic Sharia, but the prudent patient
standard can be applied by the law and would give more protection and consideration for
respecting and thus protecting patient autonomy. Thus, the thesis recommends Saudi
Arabian medical law to adopt it. I will revisit these issues at the end of this Chapter and in
the Concluding Chapter.
Despite the current application of the professional standard, based on the conclusion of
Chapter two, both Islamic Sharia and Saudi Arabian medical ethics seem to accept the
thesis’s proposed ethical standard of care that requires doctors to provide patients with
sufficient and understandable information to respect their autonomy and be self-determining
in accordance with Islamic Sharia. This standard will be examined against the current
practice under Saudi Arabian medical law in the following discussion.
Considering LPHP2005 may appear to recognise the professional standard for all doctors’
duties, it is important to consider whether it in fact does apply equally to information
disclosure. I would argue article 18 in LPHP2005 is significant here. It has stated that:
‘A healthcare professional shall, after explaining the treatment or surgery involved and outcome thereof, alert the patient or his family to the necessity of following the instructions provided and warn them of the consequences of failing to follow said instructions. A physician may, in cases of incurable or life threatening diseases, decide, at his own discretion, whether it is appropriate to inform the patient or his family of the nature of his disease, unless [the doctor
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clearly in legislation so that the professional standard does not apply to information
disclosure, as I will suggest in the Concluding Chapter.
Furthermore, I would argue that neither in article 18 nor elsewhere in LPHP2005 are there
given clear statements about other legal aspects of information disclosure including risks
that should be disclosed; whether the patient should be told about available alterative
treatment; whether the doctor has a duty to seek to ensure that the patient can understand the
provided information; how to answer patients’ questions. It seems that the doctors’ duty to
inform based on article 18 is just to impart information, even if that might be with complex
medical terms. This, I would argue, shows no consideration or respect for patient autonomy.
Therefore, LPHP2005 should be clear and respect the patient’s autonomy to be informed in
accordance with Islamic Sharia. However, article 18 is an obvious example of the lack of
clarity from which LPHP2005 suffers as it contains no clear standard of information
disclosure and it does not have an answer for the issues I have raised.
Having considered LPHP2005 I will now turn to CEHP2013. As I have stated in Chapter
two besides being an ethical guideline for doctors CEHP2013 is legally binding. In fact, it
might be considered that CEHP2013 was intended to fill some of the legal vacuums and to
clear the confusion that exists in LPHP2005. This is because it is easier to revise CEHP2013
than reforming LPHP2005, as it only needs approval by a governmental Minster. However,
as LPHP2005 surpasses CEHP2013, therefore CEHP2013 should be interpreted and
understood in the context of the legal duties which LPHP2005 has recognised.168
It should be noted that in relation to doctors’ duty to inform patients, CEHP2013 has not
stated what standard of care should be followed. It therefore does not clarify the issue of
whether it is appropriate that the standard of information disclosure should be the
professional standard as in article 26 of LPHP2005 or whether a different standard should
apply that is more protective of patient autonomy. Nonetheless, I would suggest that, as
CEHP2013 should be read and interpreted in the context of LPHP2005, thus article 26 of
applying the professional standard would be applicable. Thus, I would argue that CEHP2013
has also failed to consider that respect for patient autonomy has its place in Islamic Sharia.
In this sense, I would argue that clearing LPHP2005 by adopting the prudent patient standard
168LPHP2005article5.
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of care would give more protection to patient autonomy. Such an adoption by LPHP2005 of
the prudent standard of care would require CEHP2013 to be in harmony with it.
In response to the issues, I have raised regarding article 18 and the doctor’s duty to inform
the patient, the thesis will consider to what extent CEHP2013 has clarified some of these
questions. CEHP2013 has recognised in Chapter 2(C) 1, that for a patient’s consent to be
valid,
‘[t]he healthcare practitioner should present enough information in a language that the patient can understand about what he/she [the doctor] will do, and what is required from the patient, the possible consequences of the patient’s decisions, as well as potential complications and risks.’169
Therefore, it seems that CEHP2013 has considered information disclosure in more detail
than the LPHP2005. From the above statement by CEHP2013, there are several issues to
discuss.
C.3.1.1. The amount of information that doctors should disclose Chapter 2(C)1 in CEHP2013 has stated that doctors should provide ‘enough information’.
This is not stated in LPHP2005. Additionally, CEHP2013 has provided some elements of
what ‘enough information’ should include. It should include information about the course
and plan of what the doctor is going to perform and instruct the patient to ‘what is required
from’ him/her. Further to that the ‘enough information’ should include ‘the possible
consequences of the patient’s decisions,’ and finally the ‘potential complications and risks’.
These last two elements I will discuss under the issues of patient understanding and risk
disclosure.
Although CEHP2013 seems to recognise different elements to be included in providing
patients with ‘enough information’, I would argue that using the phrase ‘enough information’
can lead to different conclusions. Does ‘enough information’ include only the relevant
information a patient needs? Does ‘enough information’ require all information to be
disclosed? Who can determine that the information that has been disclosed is ‘enough’? If
the LPHP 2005 professional standard in article 26 is applied, then the doctor’s failure to
provide ‘enough information’ would seem to be judged by the accepted standard of medical
practice.
169CEHP2013chapter2(C)1p.17.
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Nonetheless, CEHP2013 seems to attempt to clarify the amount of information that should
be disclosed, by using the word ‘enough’ and stating what may be included. However, I
would argue that CEHP2013 has not cleared up the confusion and the professional standard
of care remains applicable; this, I would argue, has led to the same failure by LPHP2005 to
give more protection to respect for patient autonomy. Additionally, this conflicts with duties
to protect patient autonomy which are also under LPHP2005 and CEHP2013 – and the
reform is necessary to give more priority to patient autonomy. This necessary reform for
LPHP2005 to depart from the professional standard and adopt the prudent patient standard
would provide more recognition of the respect for patient autonomy that is in accordance
with Islamic Sharia, which seems now to be clearly marginalised by Saudi Arabian medical
law.
A further avenue for confusion is created in connection with the CEHP2013 statement
regarding the doctors’ duty to reassure patients.170 CEHP2013 has advised doctors to
reassure the patient by providing him/her ‘...with sufficient clear information about his/her
condition, which would help to reassure and eliminate his/her fears.’171 (Emphasis added).
This statement comes after the statement about obtaining the patient’s consent.172 Thus,
‘sufficient clear information’ may then refer to additional information that is given to the
patient after consent has been obtained, which may refer simply to the doctors’ usual duty
to relieve patients’ fears. However, I would argue that CEHP2013 in this respect is
ambiguous, because to obtain consent a patient should be provided with ‘enough
information’,173 whereas to reassure him/her ‘sufficient clear information’ should be given.
It seems odd that the requirement for information to reassure the patient seems to be greater
than that which is required to obtain his/her consent.
Thus, I would argue that CEHP2013 also has ambiguity and it has not solved the problem of
the conflict between imposing a professional standard of care in information disclosure and
the need to protect patient autonomy. Both LPHP2005 and CEHP2013 seem to have left the
authority to set the standard for informing patients to the professionals regardless of what
patients want to know. Therefore, this shows that the current practice by Saudi Arabian
medical law is in need of reform both to clarify the legal vacuum and to give more respect
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to patient autonomy by making it clear that a more patient centred standard should apply to
the legal duty to disclose information. It will therefore be recommended that a clear
statement imposing a prudent patient standard should be adopted, in line with the approach
that has been taken in the first part of the Montgomery test in the UK.
C.3.1.2. Doctors’ duty to ensure that the patient can understand the information The duty of doctors to ensure that the patient can understand the information provided is also
unclear in both LPHP2005 and CEHP2013. CEHP2013 has introduced the phrases that
information must be provided ‘in a language that the patient can understand’174 and warn of
‘the possible consequences of the patient’s decisions’175 which are not especially helpful.
The first phrase seems to be more concerned about the description of the provided
information itself and the language that is used. However, it does not require doctors to seek
to ensure that the patient can understand the information. However, the second phrase
provides a little more basis for a duty to seek to ensure that the patient can understand the
provided information. Telling the patient about the consequences of his/her decision is an
indication of doctors’ duty to ensure that the patient can understand what he/she is going to
consent to (or refuse).
Nonetheless, I would argue that the duty to seek to ensure that the patient can understand the
information given is inadequately recognised in LPHP2005 and CEHP2013. So, in this area
it can be learnt from the English law experience by placing a legal duty on doctors to take
all proper steps to seek to ensure that the patient can understand the information given, as I
will suggest in the Concluding Chapter. This is because it would be in compliance with
Islamic Sharia general principles, as I have argued in Chapter two that Islamic Sharia
requires those who provide advice to seek to ensure that the advice is clear, understandable
and truthful.
C.3.1.3. Risk disclosure Unlike LPHP2005, CEHP2013 seems to recognise that the doctors’ duty to provide ‘enough
information’ to the patient should include the ‘potential complications and risks’.176
However, I would argue that this phrase is not specific or clear in its meaning or scope. In
particular, CEHP2013 does not provide further examples or explanations for what ‘potential’
risks may include – whether this is all potential risks, only significant ones and significant
174Ibid.175Ibid.176Ibid.
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from whose perspective. Thus, I would argue such a lack of clarity should be addressed and
the Saudi Arabian medical law can learn from the English law experience in doing so, by
considering more respect for patient autonomy.
C.3.1.4. Doctors’ duty to inform the patient about available alternative treatments Unlike LPHP2005, CEHP2013 has advised doctors under the doctors’ duty for ‘achieving
patient’s interest and guarding his/her right’177 to ‘...introduce them [the patients] to
appropriate alternatives in diagnoses and treatment in a clear and honest way.’178 This may
suggest that CEHP2013 has recognised doctors’ duty to inform patients about the available
alternative treatments. Again, however, the CEHP2013 statement has not specified what
kind of alternative treatments should be disclosed. Is it all available alternative treatments or
just what may suit the patient’s case? Should doctors inform the patient about the available
alternative treatment voluntarily or just when the patient asks about the alternatives or
refuses the offered treatment? From what has been said before, I would assume that because
the professional standard is applicable, the doctors’ failure to fulfil such a duty would be
judged on that basis. This appears unsatisfactory in protecting the right of the patient to make
a sufficiently informed decision so, I would argue that the current stance of the duty to inform
the patient about available alternative treatments has to be clarified and this could be
achieved by adopting the approach taken in English law.
C.3.1.5. Doctors’ duty to answer patients’ questions The CEHP2013 under the matter of breaking bad news to the patient has recognised that: ‘It
is the right of the patient to know his/her health condition, illness, symptoms, and prognosis
in general terms. If the patient requires more details, he/she should be answered with that
[information]. Informing the patient is the duty of the treating doctor...’.179 (Emphases
added). This statement is made in relation to breaking bad news and further it might be
suggested that providing further details at the patient’s request is because the above
statement has advised doctors to only inform the patient in general terms about his/her case.
However, this does not deal with the general issue of needing to answer the patient’s
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Neither LPHP2005 nor CEHP2013 have dealt adequately with the issue of the doctors’ duty
to answer the patients’ questions. Thus, this issue in its current stance generates a legal
vacuum that need to be addressed. Again, it is suggested that this can be achieved by
reforming the law in line with the duty in English law to answer patient’s questions fully and
truthfully, and this would be in line with Islamic Sharia to provide more respect for patient
autonomy.
Having considered the standard of information disclosure and what ought to be disclosed to
the patient, the final issues to be considered are those of deliberately withholding information
from the patient: therapeutic privilege and where the patient does not wish to receive
information.
C.3.2. Therapeutic privilege LPHP2005 has recognised the notion of therapeutic privilege, as article18 has allowed a
doctor
‘...in cases of incurable or life threatening diseases to decide, at his own discretion, whether it is appropriate to inform the patient or his family of the nature of his disease, unless [the doctor was] prohibited to do so by the patient or if the patient designates a person to be exclusively informed.’180 (Emphasis added).
I would argue that, although article 18 has recognised the notion of therapeutic privilege so
as to authorise the doctor to withhold information, it is limited that to cases of ‘incurable or
life threatening diseases’,181 as CEHP2013 also states that in the event of breaking bad news
to the patient, doctors should ‘limit the information [to] that suits the patient’s knowledge
and understanding of his/her health condition without the minutiae that would increase
his/her worry.’182
Although article 18 has limited the use of the therapeutic exception to only some cases, it is
still suffering from a lack of clarity. I would argue that, although article 18 has authorised
doctors to estimate use of discretion in how to inform or not inform the patient, or his/her
appointed deputy, LPHP2005 does not clearly state that withholding information should not
take place simply because it is feared that the information may cause the patient to withhold
consent, as that would deprive the patient of the opportunity to make his/her own decision
in accordance with Islamic Sharia. Thus, leaving the estimation to the doctor would
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3.2.4. Consequences of failing to meet the standard of information disclosure and negligence In the following, the thesis will briefly discuss the issue of establishing a doctor’s civil
liability for not informing the patient.
LPHP2005, in addition to recognising the patient’s right to a civil remedy for an injury,
considers the public interest which arises as an additional issue in the context of a civil
action. That is, the doctor’s action in breaching article 18 (inform the patient) should result
in a fine (to be paid to the treasury),187 whether there was an injury or not. Furthermore,
SMPs can issue a warning or fine or suspend the doctor’s licence for disciplinary liability.188
Further, the patient should be compensated if the injury occurred as a result of the doctor’s
failure to inform the patient; SMPs will estimate the compensation amount.189 However, it
should be noted that, as the professional standard is currently applied in Saudi Arabian
medical law, so the discussion will refer to it.
In what follows, the thesis will examine the doctors’ failure to provide competent adult
patients with information that they need to make a decision concerning proposed treatment,
and how that failure would be considered by the law.
3.2.4.1. The duty of care Generally, the duty of care as a legal concept has been recognised by Islamic Sharia for a
long time, as the holy Quran recognises that a Muslim owns a duty to take care of his/her
parents.190 Further, Muslim scholars have agreed that learning medicine and treating patients
is a collective obligation; thus it becomes a duty of one or a number of people to learn
medicine and provide treatment to the community.191 Therefore, a doctor owes a duty to
serve his/her community by preventing suffering or harm and promoting healthcare by
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In the meantime, I would argue that the SMPs’ application, consideration and interpretation
of the professional standard is seemingly similar to that was held by Lord Diplock in Sidaway
as I have discussed in Chapter three. His Lordship believed that the Bolam test’s role was
clear:
‘To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way.’205
However, a patient’s claim should be submitted to a regional SMP. The basis for the patient’s
claim is based on the Messenger’s PBUH general saying: ‘Were people to be given what
they claim, men would claim fortunes and blood [lives] of people, but the onus of proof is
on the claimant and the taking of the oath is incumbent upon the one who denies it [the
allegation].’206 From this statement, it is clear that the burden of proof is always upon the
claimant (the patient) because the defendant (the doctor) is presumed not liable according to
the basic principle that ‘all people are innocent.’207 This approach of Islamic Sharia to put
the burden of proof upon the patient is similar to English law. Thus, the patient must support
his/her claim by bringing sufficient evidence which shows that the claim is valid as the holy
Quran in translation states ‘...produce your proof if you are truthful.’208
LPHP2005 has instructed patients to support their claims with medical reports and the report
that has been produced by the investigation committee in the hospital or clinic where the
action has taken place.209 Those reports will be subjected to scrutiny by the SMP members
and the parties’ lawyers.210 LPHP2005 has granted SMPs the right to appoint one or more
external additional expert(s)211 to provide evidence in the courtroom and to provide a written
medical opinion. SMPs may also do so at the patient’s or the defendant’s request. The expert
evidence will be questioned in SMP hearings and sessions.212
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resulted in the damage/injury, then identify and link each cause to the result. Thus each
person involved in causing the patient’s damage/injury should be held liable based on the
contribution of his/her action to the result and the amount of compensation will be set
accordingly.
Bear in mind that the establishment of causation will be examined against whether there is
an external factor which cut the causal link or not, such as the patient’s refusal to follow the
doctor’s instructions which then leads to the damage/injury.248 Consequently, the doctor
should not be held liable because there is no causal link between his/her action and the
damage/injury.249
For example, a patient underwent an eye operation (laser) to correct his vision in both eyes.
The ophthalmologist informed the patient about the risks and consequence that could
possibly happen in such an operation and the ophthalmologist correctly preformed and
operated on the patient’s eyes. After few months the patient started to suffer some pain in
both eyes and his vision deteriorated. The patient brought a claim arguing that the
deterioration of his vision was caused by the negligent performance of the operation.250
The SMP in Ash-Sharqiyyah examined the cause of the deterioration of the patient’s eyes
and, based on medical experts’ view, which stated that:
‘..the patient eyes have devolved a rare condition (Keratoconus) which was caused by the nature of the patient’s eyes not by the operation..., it is very rare in practice for such an operation to lead to the similar outcome, thus the damage to the patient’s eyes was directly caused by the nature of the patient’s eyes and not by the operation.’251
In terms of information and risk disclosure, the medical experts’ view was that: ‘It is an
acceptable and a usual practice for the ophthalmologist in the same situation to not inform
the patient about the rare risk of Keratoconus…’.252 Therefore, medical experts’ came to the
conclusion that
‘…there was no direct or indirect causal link between the operation and the damage to the patient’s eyes, the damage was a direct result of the nature of the patient’s eyes. Further, the ophthalmologist’s action to not inform his
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The SMP in Riyadh, based on the medical experts’ view, concluded that both doctors were
liable for the patient’s damage. The SMP in Riyadh established causation, and consequent
liability, by dividing their responsibilities as follows:
‘…. based on the medical expert’ opinion…… doctor A shared a third of the causation to the damage because, she gave misleading information to the patient and urged him to have the operation which was not urgently required, so the patient missed other chances for example, to be treated by other ways or to have another opinion regarding his case or to have the operation in another day etc. so, the patient was deprived from taken a proper decision. On the other hand, the surgeon shared two-thirds of the causation to the damage, because firstly he was not a specialist to perform the operation and secondly he operated erroneously. Further, the surgeon is liable for breaching the prevision of articles 27 and 28 from LPHP2005 by exceeding his specialty……. Therefore, doctor A has to pay third of the compensation and the surgeon has to pay two-thirds of the compensation beside that he has to pay fine to the treasury for his breach…’258
The decision was upheld by the Administrative Court of Appeal.
This case shows how link of causation can be divided and how SMPs identified each parson
relation to the cause. In doing that, SMPs relied on medical experts’ view which applied the
professional standard of care to establish the doctors’ lability.
So, whether the cause is direct or indirect a doctor should be liable if his/her action caused
the damage/injury. Thus, in the following the thesis will present the examination of direct
and indirect causation applying to information disclosure and the SMPs’ role in establishing
causation. It should be remembered that the objective standard of causation is applied based
on the professional standard of care.
1. If doctors’ failure to inform the patient about the risks was the direct cause of the patient’s
damage/injury they should be liable;259 for example, when the doctor directly provides the
patient with misleading information or withholds significant risks.
2. If doctors’ failure to inform the patient was the indirect cause of the patient’s
damage/injury, the doctor should be liable;260 for example, when the doctor provides the
wrong information to a nurse, who then passes it on to the patient. Here, although the nurse
was the one who directly informed the patient, the damage/injury was linked to the action of
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the notion of the respect for patient autonomy as that would give patients more confidence
that they were being respected.292
A very recent study published in 2014 was interesting even in its title: ‘Patients’ perceived
purpose of clinical informed consent: Mill’s individual autonomy model is preferred’.293
From the first instant, the study’s title shows its conclusion, and its reference to Mill is
significant in terms of the arguments made in Chapter one of this thesis and in terms of the
thesis’s arguments that it is appropriate to consider the development of English law based
on Western ethics when proposing legal reform for Saudi Arabia. The study’s researchers
observed that: ‘According to [a] Millian account of autonomy, it is important to promote
patient’s self-reflection and enable patients to decide for themselves.’294 The study held that
the Millian concept of autonomy considers it as personal control,295 thus:
‘Patients cannot simply trust the clinician to take good care of them; they cannot freely decide to live in an obedient way, ignore information, or let others decide. They [patients] should control their course of treatment according to their point of view, a complex and dynamic outcome of not only judgments but also emotions, beliefs, desires, and habits.’296
The authors, based on their understanding of Mill’s concept of autonomy in regard to
informed consent, designed a study which included a sample of 488 adult patients. The main
aim of the study
‘was to explore how the purpose of the informed consent process is conceptualized [sic] by patients who are planning to undergo or who had recently undergone a written informed consent-requiring procedure in a tertiary care center [sic] in Saudi Arabia.’297
The findings of the study are very interesting, as it found that the choice of the statement that
the purpose of informed consent was to
‘help patient decide’ was the best overall result, as it ‘was ranked 1–3 (out of 10) by 65% of respondents, and was ranked significantly different from the competing statements, indicating that the dominant patients’ view of informed consent’s purpose is enabling patients’ self decision-making.’298
1. A summary of the thesis This thesis has undertaken a comparative study from an ethical and a legal perspective of
the appropriate standard of information disclosure by doctors to competent adult patients. It
has considered the approaches that have been developed in Saudi Arabia and in England,
with the aim of proposing reforms to the current legal approach in Saudi Arabia. It has been
contended that the legal standard of care that applies in Saudi Arabia is currently a
professional based standard and that there are critical legal deficiencies in the way that the
law currently approaches disclosure of information to patients. These include a lack of clarity
about the role of expert evidence and the courts in establishing a breach of the duty of care;
the extent to which risks and alternative treatments need to be disclosed; the duty to answer
patients’ questions; the need to ensure patients’ understand the information given and
whether there is a therapeutic exception to withhold information. In addition, as a more
fundamental issue, this thesis has examined the underlying ethical values that the legal
approach ought to be seeking to protect in order to propose reforms. Saudi Arabia is
governed by Islamic Sharia and its laws must be consistent with these principles. However,
Islamic Sharia allows the experiences of other jurisdictions to be considered and adopted if
they are in accordance with its own principles or do not conflict with them. I have therefore
undertaken a comparative study in order to learn from the experiences of England which has
given detailed consideration to the kinds of issues raised by this thesis.
It was necessary to discuss in Chapter one the Western perspective on ethical principles,
mainly the principle of respect for autonomy and the notion of trust. The reason for this
discussion was to examine what values underpin seeking consent to treatment and
information disclosure and to provide a basis for considering how well English law has
protected these values. Chapter one studied the philosophical basis for the principle of
respect for autonomy, particularly the work of Mill and Kant. It also discussed how the
principle has been applied and developed in medical practice. The essential elements for a
decision to be considered to be autonomous were considered, namely: competence,
voluntariness and, most importantly, information disclosure. The role of consent as an
expression of the individual’s will was established.
Chapter one also considered the notion of trust as another approach that might place an
ethical duty on doctors to inform their patients. The Chapter concluded that the notion of
trust would not adequately protect the patient’s need for information, because it depends on
an imbalance of power between doctors and their patients. It might justify doctors deciding
The Concluding Chapter
273
what to disclose to patients regardless of the patient’s values and wishes, based on the
doctors’ own views of what was best for them. Thus, this imbalance of power, which is at
the heart of the concept of trust, would retain the idea of paternalism which it has been argued
no longer has a central place in the current climate of respecting patient autonomy and
choices. While doctors undoubtedly have an ethical duty to act in their patient’s best interests
and to avoid harming them, ethical medical practice is not confined to securing, so far as
possible a ‘good’ medical outcome. It is now regarded as an essential part of ethical medical
practice to respect competent adult patient’s choices even if this may result in harm to the
patient’s health or even death. Although Chapter one has observed that the concept of
autonomy is still subject to different interpretations and understandings, it has become an
essential concern in Western medical ethics in regard to patients’ consent and information
disclosure.
The principle of respect for autonomy imposes an ethical duty on doctors to respect patient
choices and to supply patients with adequate information. As an ethical ideal, since the
principle is concerned with the protection of individual patient autonomy, it could be
suggested that a patient should be given all information that enables that patient to be self-
determining and make a decision that is in accordance with his/her own values, goals and
beliefs. Too little information and patients are not adequately informed; however, too much
and it may be difficult to understand or to determine what is relevant to their decision.
Therefore, the thesis proposed an ethical standard based on the principle of respect for
autonomy which requires doctors to disclose sufficient and understandable information to
enable competent adult patients to be self-determining. It does not therefore propose that all
available information should be disclosed but it does require that the patient understands the
information given.
Having set out this as the appropriate ethical standard to apply to information disclosure,
Chapter three went on to look at the extent to which English law meets this standard. I first
sought to examine the ethical principles that have contributed to the development of English
law on information disclosure. This examination highlighted the significance of the principle
of respect for autonomy and how this has come to assume dominance in Western philosophy
and Western medical ethics, largely replacing a paternalistic approach to the practice of
medicine. I also considered the concept of trust and discussed its difficulties as a basis for
founding a legal duty to disclose information. Following on from this, I concluded that the
ethical approach that appears to be most appropriate to adopt is that:
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274
Competent adult patients have a right to respect for their autonomy. Respect for their autonomy requires that their consent is needed in order for medical treatment to be given. In order for them to properly give consent, they need to be given sufficient information relevant to their decision and that they can understand.
Putting this another way, the thesis has proposed that patients should be provided with
sufficient and understandable information to enable them to be self-determining. This
conclusion was examined against English law in the Chapter three.
Chapter two explained the fundamental importance of Islamic Sharia to all aspects of life
in Islamic countries and in order to assist understanding of this, the sources of Islamic law
and different traditions of interpreting it were considered. The Chapter also argued that both
Islamic Sharia and English law can learn some lessons from each other as there has been
some evidence which shows some adoptions of some Islamic Sharia principles by English
common law. Equally, Islamic Sharia can learn some lessons from English law experiences
with some adjustments to be consistent with its basic principles.
It was noted that Saudi Arabia follows a Sunni School of thought and the different
approaches of some of the major Sunni scholars were outlined. It was also crucial to explain
the relationship between Islamic Sharia and the legal system of the Kingdom of Saudi
Arabia. From its inception as a sovereign state, it was declared that the Kingdom would be
driven by, and would conduct itself according to, the teachings of Islamic Sharia. Thus, a
law in the country should comply or not in conflict with Islamic Sharia traditions.
The influence of Islamic Sharia sources and scholars on the legislative process in Saudi
Arabia was examined, as was their influence on medical ethics. Islamic Sharia sources have
been and remain central to the understanding of religious, ethical and legal principles in
Islamic countries, specifically Saudi Arabia. This Chapter, however, concentrated on the
religious and ethical principles and the consequences of their breach.
Chapter two argued that Islamic Sharia has implicitly recognised the need for respect for
autonomy and that decisions should be based on knowledge. This clearly indicates much that
is in common with the ethical principles discussed in Chapter one and it can be used to assert
that patients have a right to respect for their autonomous decisions about treatment and to be
provided with information in order to make them. In addition to Islamic Sharia, there is a
Saudi Arabian medical ethics guidance which has both an ethical and a legal status in
CEHP2013. It is regarded as an important regulation and a source of guidance on the
translation of some Islamic Sharia principles into medical practice in Saudi Arabia. It also
supports respect for patients’ autonomy.
The Concluding Chapter
275
However, respect for autonomy under Islamic Sharia and CEHP2013 is limited by other
central principles, including the need to preserve and protect human life and health. There
are five rulings or values concerning the degree or scale of permissibility of an action in
Islamic Sharia which are: Wajib (obligatory), Moharm (forbidden), Makroh (blameworthy),
Mandob (praiseworthy) and Mobah (indifferent).1
The discussion in this Chapter showed that recognition of respect for the adult competent
patient’s autonomy is considered in a certain way in Islamic Sharia medical ethics. It has
been argued that Islamic Sharia principles permit a competent adult patient the right of choice
as to what may be done to his/her own body, as long as that treatment or operation is not
otherwise forbidden or where refusal would lead to death or severe harm.2 If Islamic Sharia
principles would be breached, then respect for the competent adult patient’s autonomy would
be limited. This has consequences for the appropriate approach to seeking consent and for
information disclosure
The need for a decision to be based on sufficient knowledge has been mentioned. In addition,
in Islamic Sharia, the requirement for information disclosure as a means of respecting patient
autonomy may also be justified by the concept of doctors needing to act with truthfulness
and to provide appropriate and honest advice. In Chapter two I also examined the place of
trust in Islamic Sharia and noted that it is regarded as significant, but that it should not be
used to override the ethical importance of patients being enabled to make their own decisions
and to be provided with information that they need to do so.
However, Chapter two has found that, although Islamic Sharia and Saudi Arabian medical
ethics have placed an ethical duty on doctors to provide patients with information, they do
not explicitly state an ethical standard of information disclosure. To this extent, I would
suggest that reform is needed to address this. While the thesis is focused on legal reform,
since CEHP2013 has both an ethical and legal role in regulating medical practice, reform of
LPHP2005 would also need to include reform of this document. I have put forward an ethical
standard that places a duty on doctors to provide patients with sufficient and understandable
information to respect their autonomy and to enable them to be self-determining. So far, it
has been argued that the approach taken in this standard is in line with Islamic Sharia, but in
addition, all actions must be in harmony with Islamic Sharia. There may therefore be some
greater limits on what can be consented to and what can be refused under Islamic Sharia
principles. Unlike Western medical ethics, from which the thesis’s proposed ethical standard
1SeeChaptertwoforfurtherdiscussion.2Ibid.
The Concluding Chapter
276
was derived, Islamic Sharia has limited the protection given to patients’ consent and refusal
which is against its principles because it will cause death or severe harm to the person
him/herself (except in incurable illness) or others, or where (even if the result is harmless in
itself) it conflicts with Islamic Sharia teaching.3 Given that the reasons for requiring consent
to treatment are so similar, it can be suggested that the legal standard of care that has been
judged sufficient to meet the ethical standard in English law would also be appropriate to
meet the ethical standard in Saudi Arabia, provided that any issues where there might be a
conflict with Islamic Sharia are considered. As I have argued, even if Islamic Sharia takes a
different view from Western ethics and English law on the issue of whether a patient’s
decision must be respected, this does not alter the need to provide patients with sufficient
information in a way that they can understand in order to make a decision. Therefore, in
respect of information disclosure, requiring that the laws in Saudi Arabia could be reformed
in line with English law and still be in accordance with Islamic Sharia.
It was argued that according to Islamic Sharia principles, information that should be
disclosed would include information about alternative available treatments, since without
this the patient’s decision would be based on ignorance. Another area the thesis has discussed
in Chapter two was doctors’ ethical duty under Islamic Sharia to seek to ensure that the
patient can understand the information that has been provided. It was contended that
CEHP2013 does not address either of these issues adequately.
Regarding the notion of withholding information, Islamic Sharia and Saudi Arabian medical
ethics have recognised such a notion in rare cases, when that would cause serious harm to
the patient. This is also consistent with the approach taken to justifying withholding treatment
information in Chapter one.
Finally, I have argued that Islamic Sharia medical ethics recognise that a patient has an
ethical duty to seek information which would include asking questions of the doctor. Further,
it has recognised that the patient has the right to waive information and can refuse
information.
As noted, the ethical standard in Islamic Sharia is surely not identical with the Western one
as there are more limitations. For example, Islamic Sharia does not recognise or support full
respect for autonomy to consent to or refuse treatment that is against its principles or would
lead to death or severe harm (expect the case of incurable illness). On the other hand, it can
be said that many aspects are the same – respect for autonomy, the need for sufficient
3Ibid.
The Concluding Chapter
277
information to be a self-determining, the need for patients to understand the provided
information, the rare exceptions to withhold information and the duty to response to questions
fully and truthfully. Considering that, the thesis proposed ethical standard developed in this
Chapter as follows:
Competent adult patients have a right to respect for their autonomy as long as this is not in conflict with Islamic Sharia. Respect for patient autonomy requires that their consent is normally needed in order for medical treatment to be given. In order for them to properly give consent, they need to be given information relevant to their decision and that they can understand.
This standard was examined against Saudi Arabian medical law in Chapter four to explore
whether the current practice of Saudi Arabian medical law meets it. It is proposed that the
law should be reformed in Saudi Arabian to move to adopt the first part of Montgomery
standard; essentially, the prudent patient standard. It should be remembered that the standard
that Saudi Arabian medical law adopts should be adjusted to be in a compliance with Islamic
Sharia.
In Chapter three, the thesis discussed how English law has approached the need for a
competent adult patients’ consent to treatment and the consequences that follow from failing
to meet the requirements for a legally valid consent. It also considered how English law has
addressed the principle of respect for autonomy in terms of the legal requirements.
English law has recently paid considerable attention to the importance of respecting patients’
autonomy. It provides protection both through criminal and civil law. Criminal law is less
important to this thesis but the role of consent as a defence in some circumstances was
considered. More focus was placed on civil law and the elements for a legally valid consent
were outlined. These mirror the kinds of concerns that were addressed in Chapter one, such
as the need for competence, voluntariness and adequate information disclosure. It has been
clearly asserted that a competent adult patient has the full right to consent to medical
treatment or refuse it for whatever reason the patient considers fit and it has even been said
that a patient need not give a reason for refusing treatment.4 However, it was noted that
English law has drawn a distinction between the kinds of information cases that will be dealt
with in battery and those that will be dealt with in negligence. It was explained that if the
patient was informed of the broad nature of the intended intervention, this was considered
adequate to amount to sufficient information to avoid liable for battery on this ground. In
most cases, failure to provide adequate information does not fall below this level and most
cases will proceed in negligence.
Negligence claims have a number of essential elements that the claimant must prove on the
balance of probabilities: a duty of care, a breach of that duty and that damage was caused as
a result of that breach. It was explained that this is not as protective of patient autonomy as
a battery action could potentially have been but it was recognised that this distinction now
appears settled.
A number of different models of possible legal standards of information disclosure were
reviewed as part of an examination of the development of the standard in English law. These
standards were: subjective patient; professional (reasonable doctor) and prudent patient.
It has been argued that the increased affirmation of the importance of respect for patients’
autonomy as an ethical principle in medical practice can also be seen in the development of
English law. The acknowledgement of this principle can be noted strongly in the recent
Supreme Court case of Montgomery.5 This case made it clear that competent adult patients
are expected to be enabled to make their own decisions about whether to accept proposed
medical treatment and are entitled to be provided with information which will enable them
to take those decisions.6 Information should be provided based on whether
‘a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’7
There are only limited exceptions where doctors are entitled to withhold information that
would otherwise be considered necessary to the patient: when the information would lead to
serious harm to the patient.8 The fact that the patient might refuse treatment is not in itself a
reason to withhold information.
The thesis has argued that the English law experience has demonstrated a similar move away
from a standard of care based on professional expertise and judgement as has been the case
in medical ethics, and that it has developed an approach which more appropriately protects
the principle of respect for patient autonomy: a prudent patient standard.
Since the case of Bolam v Friern Hospital Management Committee9 set out the test for
professional negligence the approach to the standard of information disclosure has been
2. Proposed Reforms Reforms to the law in Saudi Arabia should be made to give greater legal recognition to the
need for respect for patient autonomy, in so far as this is in line with Islamic Sharia. This
thesis proposes that Saudi Arabian law should learn some lessons from the English law
experience which has already developed greater respect for patient autonomy from a position
that was very similar to that which is now applied in Saudi Arabia. There are therefore a
number of aspects of the English law approach that can be recommended to be adopted to
reform Saudi Arabian medical law.
2.1. The standard of care in information disclosure It should be noted that this thesis is limited to reforming the current Saudi Arabian medical
law by learning from English law experience; thus, the thesis will not suggest reform to
English law or a solution to the uncertainties in the current decision of the English law case
of Montgomery.
Therefore, I would suggest Saudi Arabian medical law should amend the current LPHP2005
(and as a result of that CEHP2013 will also require amendment) by introducing the prudent
patient standard of care as it has been stated in the first part of Montgomery test.
Thus, Saudi Arabian medical law should replace its current reliance on the professional
standard of care set out in article 26 of LPHP2005 by adopting the first part of the test in
Montgomery. The test in Montgomery is that the amount of information and risks that should
be disclosed to competent adult patients is based on the materiality of the risk, which is to
be determined as follows,
‘The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk,’42
At present, the standard of care in article 26 of LPHP2005 is as follows:
‘A healthcare professional governed by this Law [LPHP2005] shall exert due care in line with commonly established professional standard.’43
Therefore, the thesis would propose the following formula to be adopted by LPHP2005:
Doctors must disclose relevant and material information about treatment and the risks that a reasonable patient would want to know in order for him/her to make an informed decision whether to consent to or refuse medical treatment. This relevance and materiality of information is to be judged from the perspective of the reasonable patient not from that of accepted medical practice.
be reformed to give greater respect to the principle of autonomy, albeit in accordance with
Islamic Sharia teaching.45 Saudi Arabian medical law can learn from the current English law
experience in respect of the specific issues related to information disclosure below. The
following recommendations are made:
1. The legal duty to inform patients about available alternative treatments: Saudi Arabian
medical law can learn from the decisions in Montgomery and Birch v UCL Hospital,46
although it should be noted that, as I have stated in Chapter three and above, the extent of
this duty is still uncertain under English law. Thus, the following formula is the same as in
England, although there are problems with it and it will need further development in both
countries. Therefore, the thesis would propose the following formula to be adopted by
LPHP2005:
Doctors must disclose to patients any reasonable alternative or variant treatment.
2. The legal duty to answer patients’ questions: Saudi Arabian medical law should learn from
the decision in Montgomery, which approved Lord Bridge’s approach in Sidaway. Therefore,
the thesis would propose the following formula to be adopted by LPHP2005:
When the patient asks a question, doctors must answer that question fully and truthfully.
3. Information understanding: Saudi Arabian medical law should learn from the decision in
Montgomery and AlHamwi v Johnston.47 Therefore, the thesis would propose the following
formula to be adopted by LPHP2005, considering that this formula is the same as in
English law, although there are problems with it and it will need further development in
both countries:
Doctors should take all reasonable steps to seek to ensure that the provided information can be understood by the patient.
4. The therapeutic exception: Saudi Arabian medical law should learn from the decision in
Montgomery and Islamic Sharia. Therefore, the thesis would propose the following formula
to be adopted by LPHP2005:
The application of a therapeutic exception should be used only in circumstances where disclosure would cause serious harm to the patient. Additionally, in the case where the patient has an obligation to consent to or refuse treatment the application of the therapeutic exception to withhold information should not be used by doctors to deprive the patient from making an informed decision.
5. With regard to providing information to a patient who does not want it: Saudi Arabian
medical law can learn from English law experience and Islamic Sharia. Therefore, the thesis
would propose the following formula to be adopted by LPHP2005:
If a patient has clearly expressed that he/she does not want to know about his/her condition or the risk involved in the condition or in any treatment, doctors should respect the patient’s decision, although doctors should provide but not force basic information on the patient.
6. I would argue that, it is not sufficiently practical simply to depart from the professional
standard of care and adopt the prudent patient standard. This departure also requires
reforming the composition and process of decision-making in SMPs. The fact that the SMP
decision-makers include doctors, suggests that appropriate application of the new standard
may be problematic as it is a legal and not a medical standard. Thus, it is proposed that:
SMPs should be abolished and their jurisdiction should be moved to specialist courts of law. Further, that specialist courts must meet the LJ2007 requirements, to be composed of judges with Sharia and legal backgrounds not medical professionals.
4. Concluding remarks In addition to the recommendations above, I would further emphasise that:
1. Both the Saudi Arabian Ministery of Health and SCHS should do more in terms of
educating medical staff regarding legal and ethical issues, specifically patients’ rights,
consent and information disclosure. Further, Ministery of Health and SCHS should provide
medical staff with all relevant principles and laws in a basic and clear form to be an easy
guideline for them. That, I would argue, can be achieved by updating the ethical guideline
(CEHP2013), which should contain clear instructions for the critical issues which daily face
medical staff and patients, including the issues the thesis has highlighted. It is also necessary
that CEHP2013 be brought into line with any recommendations for reform adopted in
LPHP2005, since CEHP2013 is not only a source of ethical guidance for doctors but it has
legal effect too. Since one of the aims of the thesis is to promote clarity and consistency of
approach, it is essential that these two instruments are reformed together. Both the MoH and
the SCHS should also educate patients and provide them with more and easier access to what
they should know about their rights, such as obtaining their consent and their right to be
provided with information.
2. I would encourage legal academics and Saudi Arabian scholars to undertake different
studies and research to discuss and address the different issues in the area of Islamic Sharia
and Saudi Arabian medical laws which have so far not been widely debated, such as the
issue of information disclosure. This could include, for example, reviewing a wide range of
The Concluding Chapter
289
Muslim scholars and jurists’ books to identify and verify medical principles and to format
them into clear regulations. However, I would argue that it would also be beneficial if studies
were made to compare different legal systems, to present and demonstrate different analyses
that have previously not been considered in Saudi Arabian medical law literature. While not
advocating a wholesale adoption of the jurisprudence of other legal systems, since Saudi
Arabia has a rich tradition of its own, such studies could be used to provide additional ways
of considering issues and developing them in a way that remains consistent with the
governing principles of Islamic Sharia.
3. Currently a draft Bill, entitled; Health Ethics Law (the Bill) is proposed by the Saudi
Health Council48 (SHC) The main aim of this Bill is to place ethical duties on health
professionals (doctors, nurses etc.) and healthcare providers (hospitals, clinics etc.) in regard
to public health, patients’ rights, medical staff’s duties and medical institutions’ duties, to be
enforced by law.49
The Bill contains fifteen chapters. Most interesting is chapter three which is entitled ‘Ethics
Towards Patients’. This chapter focuses on how both medical professionals and healthcare
providers should deal with patients and ensure that they are respected.50 In the following I
will consider and examine the articles that are related to the main focus of this thesis and its
proposals for reform of the LPHP2005’s deficiencies in order to evaluate whether the Bill
has met the thesis’s proposals or not.
3.1. The Bill has reintroduced the notion of respecting patients’ choices and wishes,51 which
has already been stated in LPHP2005 as I have explained in Chapter four. Hence, patients’
choices should be respected as long as they are in accordance with Islamic Sharia and Saudi
Arabian law. Thus the Bill has just reinforced a well-established principle, so it does not add
a new principle. But I would argue that, this reinforcement shows that Saudi Arabian law
gives some protection to respecting patients’ choices and their rights.
3.2. In regard to the matter of information disclosure, the Bill has adopted the concept of
‘informed consent’52 (AlMowfaqh Almtabsserah). This has been defined by the Bill as ‘a
consent that is given by a competent adult patient with his/her free will, and upon full
While progress is to be welcomed, a more radical approach would be needed to satisfy the
aim of protecting patients’ rights and demonstrating respect for their autonomy.
Finally, based on what has been discussed and argued for in this thesis, it is clear that the development
of English law has demonstrated that the considerably increased attention to patients’ rights has led
the law away from reliance on the professional standard of care towards a prudent patient standard,
which provides more consideration of some of the ethical principles that strongly safeguard patients’
autonomy and their roles in making informed decisions. This movement by English law towards
protecting patients’ rights and autonomy can be traced clearly throughout the case law that was
discussed in Chapter three.
Thus, since the protection of rights in general, and patients’ rights specifically, is completely in
harmony with Islamic Sharia and Saudi Arabian law, there is no reason for, nor is there a barrier to,
Saudi Arabian medical law following the English law example, albeit that there are some limitations
imposed by Islamic Sharia principles in regard to some aspects of patients’ consent and refusal.
Nonetheless, these limitations do not directly affect the development of an appropriate information
disclosure standard such as that developed in English Law. As the thesis has shown, both legal
systems are in total agreement in their expressed commitment to the protection of patients’ rights.
Therefore, as has been argued in this thesis, a major benefit of endorsing the English law approach
and learning from its experiences is that it requires clarification of the problems identified in this
thesis both in the existing Saudi Arabian medical law and in the proposed new Bill (Health Ethics
Law).
Remedying these problems will result in Saudi Arabian medical law achieving its goals of offering
protection to the rights of patients to make an informed decision about their healthcare without
negatively affecting medical practice.
While the thesis did not set out to consider decision-making institutions directly, a consequence of
the argument here is that development of a clear legal standard also requires re-evaluation of the
current SMPs that are charged with the responsibility of deciding on issues of liability.
Moving SMPs jurisdictions to courts of law comprising judges (with legal backgrounds) would give
more assurance to patients that their rights to be informed will be appropriately protected and
respected.
Thus, I would conclude that the arguments developed in this thesis would help not only to reform the
current Saudi Arabian medical law (LPHP2005), but also would supply solutions to the problems
identified in the proposed new Bill.
The Concluding Chapter
294
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